Common use of CO-SALE PROVISIONS Clause in Contracts

CO-SALE PROVISIONS. (a) Any Transfer for value by EES or Xxxxxx (or an Affiliate of EES or Xxxxxx to whom Common Stock or Common Stock Equivalents are Transferred pursuant to clause (i) below) of Common Stock or Common Stock Equivalents (the "Transferred Securities") shall be subject to this Section 3.5 other than (i) a Transfer to an Affiliate of EES or Xxxxxx if, but only if, at least eighty percent (80%) of the economic and voting interest represented by such Transferred Securities continues to be held after such Transfer, directly or indirectly, by EES or Enron, (ii) any Transfer of shares of Common Stock or Common Stock Equivalents that does not in the aggregate, when added to all other Transfers exempted from this Section 3.5 pursuant to this clause (ii) in the aggregate, since the date of this Agreement, represent more than 5,000 shares of Common Stock (appropriately adjusted to give effect to any stock splits, stock dividends, combinations or reclassifications of the Common Stock) or Common Stock Equivalents representing more than 25,800 shares of Fully-Diluted Common Stock (appropriately adjusted to give effect to any stock splits, stock dividends, combinations or reclassifications of the Common Stock) less any shares of Common Stock Transferred pursuant to this (ii), (iii) any Transfer in connection with which the Transferring Party and its Affiliates retain substantially all of the economic risks and benefits of ownership and, other than with respect to the Special Warrants, voting rights of such Transferred Securities, or (iv) any Transfer governed by the provisions of Section 3.6. (b) In connection with any proposed Transfer that is subject to this Section 3.5, the Transferring Party shall give written notice to each other Party of the Participation Offer (the "Co-Sale Notice") at least twenty (20) days prior to any proposed Transfer that is subject to this Section 3.5. The Co-Sale Notice shall specify the proposed transferee, the number of and types of Transferred Securities to be Transferred to such transferee, the amount and type of consideration to be received therefor, if applicable, a description of any consideration to be received by the Transferring Party in connection with the proposed Transfer and any transactions related thereto that has not been allocated by the proposed purchaser or Transferring Party to shares of Common Stock or Common Stock Equivalents (the "Proposed Consideration Allocation"), and the place and date on which the Transfer is expected to be consummated. The Co-Sale Notice shall include an offer (the "Participation Offer") by the Transferring Party to include in the proposed Transfer on the terms described in paragraph (c) below a number of shares of Common Stock or Common Stock Equivalents designated by any of the other Parties, not to exceed, in respect of any such other Party, the product of (A) the aggregate number of Transferred Securities to be sold by the Transferring Party to the proposed transferee and (B) a fraction with a numerator equal to the number of shares of Fully-Diluted Common Stock held by such other Party and a denominator equal to the number of shares of Fully-Diluted Common Stock held by all Parties; PROVIDED that for purposes of the foregoing, a share of Common Stock, a share of Non-Voting Common Stock, a Special Warrant to acquire one share of Common Stock or Non-Voting Common Stock and an Investor Warrant to acquire one share of Common Stock or Non-Voting Common Stock shall all be deemed to be equivalent except that if a Party elects to include Special Warrants or Investor Warrants pursuant to the Participation Offer, then (i) if the consideration to be received in connection with the sale of the Transferred Securities is cash, then the consideration to be received by a Party Transferring Special Warrants or Investor Warrants shall be reduced by the aggregate exercise price of all such warrants to be included and (ii) if the consideration to be received in connection with the sale of the Transferred Securities includes non-cash consideration, then a Party may include Special Warrants or Investor Warrants only if such Party tenders in connection with such sale cash in the aggregate amount of the exercise price of such warrants; PROVIDED FURTHER, HOWEVER, that a Party may not include Investor Warrants in any such sale without first including all shares of Common Stock, Non-Voting Common Stock and Special Warrants owned by it or its Affiliates. (c) Except as set forth herein and in paragraph (b) above, the consideration to be received for any shares of Common Stock or Common Stock Equivalents included in a proposed Transfer hereunder shall be the same consideration to be received by the Transferring Party as set forth in the Participation Offer (giving effect to the Proposed Consideration Allocation, if applicable). Each Party who wishes to include shares of Common Stock and Common Stock Equivalents in the proposed Transfer in accordance with the terms set forth in the Participation Offer shall so notify the Transferring Party not more than fifteen (15) days after the date of the Co-Sale Notice, failing which such Party shall not be entitled to participate in the proposed Transfer; PROVIDED that if the Participation Offer includes a Proposed Consideration Allocation and the holders of at least a majority of the shares of Common Stock or Common Stock Equivalents that would be entitled to participate in such proposed Transfer pursuant to this Section 3.5 object to the fairness of such Proposed Consideration Allocation, such holders may deliver notice of such objection to the Transferring Party and the Company (an "Objection Notice") within such fifteen (15)-day period, upon which the following terms will apply. Upon timely receipt of an Objection Notice, the Company will as promptly as practicable hire a nationally recognized investment banking firm, not Affiliated with any Party and reasonably acceptable to the Special Committee and the Transferring Party, to evaluate the fairness of the Proposed Consideration Allocation using customary investment banking valuation techniques and, if such investment banking firm determines that such Proposed Consideration Allocation does not represent a fair allocation of the value of the consideration to be received in connection with the proposed transaction to the Common Stock and Common Stock Equivalents to be included in such proposed Transfer, to determine a revised allocation that in the judgment of such investment banking firm would be fair (a "Revised Consideration Allocation"). The Company shall use its commercially reasonable efforts to cause the investment banking firm to make the foregoing determinations within twenty (20) days of receipt of an Objection Notice. The Transferring Party will as promptly as practicable provide such investment banking firm with such information concerning the proposed Transfer and related transactions as shall reasonably be requested by such investment banking firm subject to the execution and delivery of a customary confidentiality agreement. The investment banking firm shall notify the Company, the Transferring Party and each other Party of its determination, including the terms of its Revised Consideration Allocation, if any (the "Determination Notice"). If the investment banking firm determines that the Proposed Consideration Allocation was fair, then each Party who wishes to include shares of Common Stock and Common Stock Equivalents in the proposed Transfer in accordance with the terms set forth in the Participation Offer shall so notify the Transferring Party not more than ten (10) days after the date of the Determination Notice, failing which such Party shall not be entitled to participate in the proposed Transfer. If the investment banking firm determines that the Proposed Consideration Allocation was not fair and provides a Revised Consideration Allocation, then each Party who wishes to include shares of Common Stock and Common Stock Equivalents in the proposed Transfer in accordance with the terms set forth in the Participation Offer revised to reflect the Revised Consideration Allocation shall so notify the Transferring Party not more than ten (10) days after the date of the Determination Notice, failing which such Party shall not be entitled to participate in the proposed Transfer; PROVIDED, HOWEVER, that in any event, the Transferring Party may elect not to proceed with the proposed Transfer for any reason. The fees and expenses of any investment banking firm hired for the foregoing purposes shall be borne by the Company. (d) The Participation Offer shall be conditioned upon the Transferring Party's Transfer of Transferred Securities pursuant to the transactions contemplated in the Co-Sale Notice with the transferee named therein. If any other Party or other Parties have accepted the Participation Offer, the Transferring Party shall reduce to the extent necessary the number of Transferred Securities it otherwise would have Transferred in the proposed Transfer so as to permit other Parties who have accepted the Participation Offer to sell the number of shares that they are entitled to sell under this Section 3.5, and the Transferring Party and such other Party or other Parties shall sell the number of shares specified in the Participation Offer to the proposed transferee in accordance with the terms of such sale as set forth in the Co-Sale Notice. Any Party other than the Transferring Party who participates in a Transfer under this Section 3.5 shall not be liable for any transaction costs associated with such a Transfer other than the legal costs incurred by that Party and, if the Transferring Party is obligated to pay selling commissions, then a pro rata portion of such selling commissions. (e) Each such Party to a Transfer pursuant to this Section 3.5 shall not be required to make any representations or warranties in connection with such Transfer other than representations and warranties as to (i) such Person's ownership of the shares of Common Stock and Common Stock Equivalents to be Transferred free and clear of all liens, claims and other encumbrances other than those arising under this Agreement, (ii) such Party's power and authority to effect such Transfer, and (iii) such matters pertaining to compliance with securities laws as the transferee may reasonably require. (f) The closing of such purchase by the transferee shall be on the same date that the transferee acquires Transferred Securities from the Transferring Party, provided that such other Parties are given twenty (20) days advance notice of such closing; PROVIDED FURTHER, HOWEVER, that any such closing shall be delayed, to the extent required until two (2) Business Days following the expiration of any required waiting periods under the HSR Act and the FPA and the obtaining of all other governmental approvals reasonably deemed necessary by a Party. (g) Each Party who participates in a Transfer pursuant to this Section 3.5 shall promptly perform, whether before or after any such closing, such additional acts (including, without limitation, executing and delivering additional documents) as are reasonably required to effect more fully the transactions contemplated by this Section 3.5.

CO-SALE PROVISIONS. (a) Any Transfer Subject to subsection (g) below, any of the following transfers for value by EES or Xxxxxx (or an Affiliate for purposes of EES or Xxxxxx this Section 7.3 referred to whom Common Stock or Common Stock Equivalents are Transferred pursuant to clause (ias a “sale”) below) of shares of Common Stock or Common Preferred Stock Equivalents (the "Transferred Securities") shall be subject to this Section 3.5 other than 7.3: (i) a Transfer to an Affiliate of EES or Xxxxxx if, but only if, at least eighty percent (80%) sale by each of the economic and voting interest represented by such Transferred Securities continues to be held after such Transfer, directly Stockholders together in one transaction or indirectly, by EES or Enron, a series of related transactions; (ii) a sale by any Transfer Stockholder (other than Xxx Xxxxxxxxxx) of any of the shares of Common Stock held by such Stockholder that are subject to the lock-up agreements referred in Section 2.34 and Section 4.8 hereof; provided, however, that the Purchasers shall not have any rights pursuant to this Section 7.3(a)(ii) with respect to any such shares of Common Stock until such Stockholder (or any permitted transferee under clauses (A), (B), (C) or (D) below) sells in one or more transactions (whether or not related) more than 25% of such shares of Common Stock held by such Stockholder as of the date hereof; (iii) a sale by any Stockholder (other than Xxx Xxxxxxxxxx) of shares of Common Stock held by such Stockholder to Argyle Joint Venture; (iv) a sale of Contributed Shares by Argyle Joint Venture as a result of the application of clause (C) below; or Common Stock Equivalents that does not (v) in connection with a Co-Sale Control Event. Notwithstanding anything to the aggregatecontrary, when added to all other Transfers exempted from the restrictions on transfer contained in this Section 3.5 pursuant 7.3 shall not apply to this clause (iiA) in the aggregate, since the date any sales of this Agreement, represent more than 5,000 shares of Common Stock (appropriately adjusted by the Stockholders pursuant to give effect to any stock splitsRule 144 under the Securities Act; provided, stock dividendshowever, combinations or reclassifications that this in no way limits the registration rights of the Common StockPurchasers pursuant to Article VI, including, but not limited to, the piggy-back rights described in Section 6.2; (B) the transfer of any or Common Stock Equivalents representing more than 25,800 shares of Fully-Diluted Common Stock (appropriately adjusted to give effect to any stock splits, stock dividends, combinations or reclassifications all of the Common Stock) less any shares of Common Stock Transferred pursuant owned by a Stockholder, either during their lifetime or on death, by gift, will or intestate succession, to this the immediate family of such Stockholder or to a trust the beneficiaries of which are exclusively such Stockholder and/or a member or members of such Stockholder’s immediate family; (iiC) the transfer of shares of Common Stock by any Stockholder (other than Xxx Xxxxxxxxxx) by capital contribution to Argyle Joint Venture (the “Contributed Shares”); or (D) the transfer by a Stockholder to an Affiliate; provided, however, that in the case of clauses (B), (iiiC) any Transfer and (D) above, it shall be a condition to such transfer that the transferee executes and delivers to the Purchasers an agreement stating that the transferee is receiving and holding the shares of Common Stock subject to the provisions of this Section 7.3, and there shall be no further transfer of such shares of Common Stock, except in accordance with this Section 7.3. Shares to be transferred in connection with which the Transferring Party transactions described in this Section 7.3 are referred to as the “Co-Sale Shares” and its Affiliates retain substantially all of any Persons participating in such transaction are collectively referred to as the economic risks and benefits of ownership and, other than with respect to the Special Warrants, voting rights of such Transferred Securities, or (iv) any Transfer governed by the provisions of Section 3.6“Co-Seller.” (b) In connection with any proposed Transfer transfer that is subject to this Section 3.57.3, the Transferring Party Company shall give written notice to each other Party of the Participation Offer Purchasers in accordance with Section 9.6 (the "“Co-Sale Notice"”) at least twenty (20) days prior to any proposed Transfer transfer that is subject to this Section 3.57.3. The Co-Sale Notice shall specify the proposed transferee, whether such proposed transferee is willing to purchase shares of Common Stock or Preferred Stock then held by the Purchasers and, if so, the maximum number of shares of Common Stock or Preferred Stock such proposed transferee is willing to purchase from the Purchasers, the number of and types of Transferred Securities Co-Sale Shares to be Transferred transferred to such proposed transferee, the amount and type of consideration to be received therefor, if applicable, a description of any consideration to be received by the Transferring Party in connection with the proposed Transfer and any transactions related thereto that has not been allocated by the proposed purchaser or Transferring Party to shares of Common Stock or Common Stock Equivalents (the "Proposed Consideration Allocation"), and the place and date on which the Transfer transfer is expected to be consummated. The Co-Sale Notice shall include an offer (the "“Participation Offer"”) by the Transferring Party Co-Seller to include in the proposed Transfer transfer on the terms described in paragraph (c) below a number of shares of Common Stock or Common Preferred Stock Equivalents designated by any of the other PartiesPurchasers, not to exceed, in respect of any such other Party, the product of (A) the sum of the aggregate number of Transferred Securities Co-Sale Shares to be sold by the Transferring Party to the proposed transferee plus the maximum number of shares of Common Stock or Preferred Stock such proposed transferee is willing to purchase from the Purchasers and (B) a fraction with a numerator equal to the number of shares of Fully-Diluted Common Stock held by such other Party the Purchasers and a denominator equal to the number of shares of Fully-Diluted Common Stock held by all Parties; PROVIDED that for purposes of the foregoing, a share of Common Stock, a share of NonCo-Voting Common Stock, a Special Warrant to acquire one share of Common Stock or Non-Voting Common Stock Seller and an Investor Warrant to acquire one share of Common Stock or Non-Voting Common Stock shall all be deemed to be equivalent except that if a Party elects to include Special Warrants or Investor Warrants pursuant to the Participation Offer, then (i) if the consideration to be received in connection with the sale of the Transferred Securities is cash, then the consideration to be received by a Party Transferring Special Warrants or Investor Warrants shall be reduced by the aggregate exercise price of all such warrants to be included and (ii) if the consideration to be received in connection with the sale of the Transferred Securities includes non-cash consideration, then a Party may include Special Warrants or Investor Warrants only if such Party tenders in connection with such sale cash in the aggregate amount of the exercise price of such warrants; PROVIDED FURTHER, HOWEVER, that a Party may not include Investor Warrants in any such sale without first including all shares of Common Stock, Non-Voting Common Stock and Special Warrants owned by it or its AffiliatesPurchasers. (c) Except as set forth herein and in paragraph (b) above, the per share consideration to be received for any shares of Common Stock or Common Preferred Stock Equivalents included in a proposed Transfer transfer hereunder shall be the same per share consideration to be received by the Transferring Party as set forth in the Participation Offer (giving effect to the Proposed Consideration Allocation, if applicable)Offer. Each Party who wishes to include shares of Common Stock and Common Stock Equivalents in the proposed Transfer in accordance with the terms set forth in the Participation Offer The Purchasers shall so notify the Transferring Party Company not more than fifteen five (155) business days after the date of the Co-Sale Notice, failing which such Party the Purchasers shall not be entitled to participate in the proposed Transfer; PROVIDED that if the Participation Offer includes a Proposed Consideration Allocation and the holders of at least a majority of the shares of Common Stock or Common Stock Equivalents that would be entitled to participate in such proposed Transfer pursuant to this Section 3.5 object to the fairness of such Proposed Consideration Allocation, such holders may deliver notice of such objection to the Transferring Party and the Company (an "Objection Notice") within such fifteen (15)-day period, upon which the following terms will apply. Upon timely receipt of an Objection Notice, the Company will as promptly as practicable hire a nationally recognized investment banking firm, not Affiliated with any Party and reasonably acceptable to the Special Committee and the Transferring Party, to evaluate the fairness of the Proposed Consideration Allocation using customary investment banking valuation techniques and, if such investment banking firm determines that such Proposed Consideration Allocation does not represent a fair allocation of the value of the consideration to be received in connection with the proposed transaction to the Common Stock and Common Stock Equivalents to be included in such proposed Transfer, to determine a revised allocation that in the judgment of such investment banking firm would be fair (a "Revised Consideration Allocation"). The Company shall use its commercially reasonable efforts to cause the investment banking firm to make the foregoing determinations within twenty (20) days of receipt of an Objection Notice. The Transferring Party will as promptly as practicable provide such investment banking firm with such information concerning the proposed Transfer and related transactions as shall reasonably be requested by such investment banking firm subject to the execution and delivery of a customary confidentiality agreement. The investment banking firm shall notify the Company, the Transferring Party and each other Party of its determination, including the terms of its Revised Consideration Allocation, if any (the "Determination Notice"). If the investment banking firm determines that the Proposed Consideration Allocation was fair, then each Party who wishes to include shares of Common Stock and Common Stock Equivalents in the proposed Transfer in accordance with the terms set forth in the Participation Offer shall so notify the Transferring Party not more than ten (10) days after the date of the Determination Notice, failing which such Party shall not be entitled to participate in the proposed Transfer. If the investment banking firm determines that the Proposed Consideration Allocation was not fair and provides a Revised Consideration Allocation, then each Party who wishes to include shares of Common Stock and Common Stock Equivalents in the proposed Transfer in accordance with the terms set forth in the Participation Offer revised to reflect the Revised Consideration Allocation shall so notify the Transferring Party not more than ten (10) days after the date of the Determination Notice, failing which such Party shall not be entitled to participate in the proposed Transfer; PROVIDED, HOWEVER, that in any event, the Transferring Party may elect not to proceed with the proposed Transfer for any reason. The fees and expenses of any investment banking firm hired for the foregoing purposes shall be borne by the Companytransfer. (d) The Participation Offer shall be conditioned upon the Transferring Party's Transfer actual transfer of Transferred Securities Co-Sale Shares pursuant to the transactions contemplated in the Co-Sale Notice with the transferee named therein. If any other Party or other Parties have accepted the Purchasers accept the Participation Offer, the Transferring Party number of Co-Sale Shares shall reduce be reduced to the extent necessary the number of Transferred Securities it otherwise would have Transferred in the proposed Transfer so as to permit other Parties who have accepted the Participation Offer Purchasers to sell the number of shares that they are entitled to sell under this Section 3.57.3, and the Transferring Party Co-Seller and such other Party or other Parties the Purchasers shall sell the number of shares specified in the Participation Offer to the proposed transferee in accordance with the terms of such sale as set forth in the Co-Sale Notice. Any Party other than If the Transferring Party who participates in a Transfer proposed transferee refuses to purchase from the Purchasers the number of shares that they are entitled to sell under this Section 3.5 7.3, then (i) the Co-Seller shall be entitled to sell up to the number of shares specified in the Participation Offer to the proposed transferee in accordance with the terms of such sale as set forth in the Co-Sale Notice and (ii) the Co-Seller shall then purchase from the Purchasers, on the terms set forth in the Co-Sale Notice, up to the number of shares that they would have been entitled to sell under this Section 7.3 had the proposed transferee purchased such shares directly from the Purchasers in accordance with the terms of this Section 7.3. The Purchasers shall not be liable under this Section 7.3 for any transaction costs associated with such a Transfer transfer other than the legal costs incurred by that Party and, if the Transferring Party is obligated to pay selling commissions, then a pro rata portion of such selling commissionsPurchasers. (e) Each such Party to a Transfer pursuant to this Section 3.5 The Purchasers shall not be required to make any representations or warranties in connection with such Transfer a transfer pursuant to this Section 7.3 other than representations and warranties as to (i) such Person's the Purchasers’ ownership of the shares of Common Stock and Common or Preferred Stock Equivalents to be Transferred transferred free and clear of all liens, claims and other encumbrances other than those arising under this AgreementAgreement or the constituent documents of the Company, (ii) such Party's the Purchasers’ power and authority to effect such Transfertransfer, and (iii) such matters pertaining to compliance with securities laws Laws as the transferee may reasonably require; provided, however, for the avoidance of doubt the parties acknowledge that the consideration to be received by the Co-Seller and the Purchasers may consist of, among other things, an interest in an escrow account, a security or other consideration, the ultimate value of which may be dependent upon, among other things, the accuracy of representations and warranties relating to the Company and its business or the future performance of the Company; provided, however, any liability with respect of the Purchasers to any indemnification claim relating to representations and warranties, covenants or other agreements relating to the Company or any Co-Seller shall be several (and not joint and several) and the Purchasers’ liability with respect to such claims shall not exceed their proportionate share thereof based on their Fully-Diluted Common Stock ownership percentage relative to the Co-Seller. (f) The closing of such purchase by the transferee shall be on the same date that the transferee acquires Transferred Securities from the Transferring PartyCo-Sale Shares, provided that such other Parties are the Purchasers have been given twenty (20) days advance notice of such closing; PROVIDED FURTHERprovided further, HOWEVERhowever, that any such closing shall be delayed, to the extent required required, until two (2) Business Days following the expiration of any required waiting periods under the HSR Act and the FPA and next succeeding business day after the obtaining of all other governmental approvals reasonably deemed necessary by a Partyparty to the transfer. (g) Each Party who participates Nothing in a Transfer pursuant to this Section 3.5 7.3 shall promptly perform, whether before restrict or after in any such closing, such additional acts (including, without limitation, executing and delivering additional documents) as are reasonably required way inhibit the rights of the Purchasers to effect more fully exercise their rights under the transactions contemplated by this right of first refusal agreements described in Section 3.57.4.

CO-SALE PROVISIONS. (a) Any Transfer of the following transfers for value by EES or Xxxxxx (or an Affiliate for purposes of EES or Xxxxxx this Section 7.3 referred to whom Common Stock or Common Stock Equivalents are Transferred pursuant to clause (ias a “sale”) below) of shares of Common Stock or Common Preferred Stock Equivalents (the "Transferred Securities") shall be subject to this Section 3.5 other than 7.3: (i) a Transfer to an Affiliate of EES or Xxxxxx if, but only if, at least eighty percent (80%) sale by each of the economic and voting interest represented by such Transferred Securities continues to be held after such Transfer, directly Stockholders together in one transaction or indirectly, by EES or Enron, a series of related transactions; (ii) a sale by any Transfer Stockholder (other than Xxx Xxxxxxxxxx) of any of the shares of Common Stock held by such Stockholder that are subject to the lock-up agreements referred in Section 2.34 and Section 4.8 hereof; provided, however, that the Purchasers shall not have any rights pursuant to this Section 7.3(a)(ii) with respect to any such shares of Common Stock until such Stockholder (or any permitted transferee under clauses (A), (B), (C) or (D) below) sells in one or more transactions (whether or not related) more than 25% of such shares of Common Stock held by such Stockholder as of the date hereof; (iii) a sale by any Stockholder (other than Xxx Xxxxxxxxxx) of shares of Common Stock held by such Stockholder to Argyle Joint Venture; (iv) a sale of Contributed Shares by Argyle Joint Venture as a result of the application of clause (C) below; or Common Stock Equivalents that does not (v) in connection with a Co-Sale Control Event. Notwithstanding anything to the aggregatecontrary, when added to all other Transfers exempted from the restrictions on transfer contained in this Section 3.5 pursuant 7.3 shall not apply to this clause (iiA) in the aggregate, since the date any sales of this Agreement, represent more than 5,000 shares of Common Stock (appropriately adjusted by the Stockholders pursuant to give effect to any stock splitsRule 144 under the Securities Act; provided, stock dividendshowever, combinations or reclassifications that this in no way limits the registration rights of the Common StockPurchasers pursuant to Article VI, including, but not limited to, the piggy-back rights described in Section 6.2; (B) the transfer of any or Common Stock Equivalents representing more than 25,800 shares of Fully-Diluted Common Stock (appropriately adjusted to give effect to any stock splits, stock dividends, combinations or reclassifications all of the Common Stock) less any shares of Common Stock Transferred pursuant owned by a Stockholder, either during their lifetime or on death, by gift, will or intestate succession, to this the immediate family of such Stockholder or to a trust the beneficiaries of which are exclusively such Stockholder and/or a member or members of such Stockholder’s immediate family; (iiC) the transfer of shares of Common Stock by any Stockholder (other than Xxx Xxxxxxxxxx) by capital contribution to Argyle Joint Venture (the “Contributed Shares”); or (D) the transfer by a Stockholder to an Affiliate; provided, however, that in the case of clauses (B), (iiiC) any Transfer and (D) above, it shall be a condition to such transfer that the transferee executes and delivers to the Purchasers an agreement stating that the transferee is receiving and holding the shares of Common Stock subject to the provisions of this Section 7.3, and there shall be no further transfer of such shares of Common Stock, except in accordance with this Section 7.3. Shares to be transferred in connection with which the Transferring Party transactions described in this Section 7.3 are referred to as the “Co-Sale Shares” and its Affiliates retain substantially all of any Persons participating in such transaction are collectively referred to as the economic risks and benefits of ownership and, other than with respect to the Special Warrants, voting rights of such Transferred Securities, or (iv) any Transfer governed by the provisions of Section 3.6“Co-Seller.” (b) In connection with any proposed Transfer transfer that is subject to this Section 3.57.3, the Transferring Party Company shall give written notice to each other Party of the Participation Offer Purchasers in accordance with Section 9.6 (the "“Co-Sale Notice"”) at least twenty (20) days prior to any proposed Transfer transfer that is subject to this Section 3.57.3. The Co-Sale Notice shall specify the proposed transferee, whether such proposed transferee is willing to purchase shares of Common Stock or Preferred Stock then held by the Purchasers and, if so, the maximum number of shares of Common Stock or Preferred Stock such proposed transferee is willing to purchase from the Purchasers, the number of and types of Transferred Securities Co-Sale Shares to be Transferred transferred to such proposed transferee, the amount and type of consideration to be received therefor, if applicable, a description of any consideration to be received by the Transferring Party in connection with the proposed Transfer and any transactions related thereto that has not been allocated by the proposed purchaser or Transferring Party to shares of Common Stock or Common Stock Equivalents (the "Proposed Consideration Allocation"), and the place and date on which the Transfer transfer is expected to be consummated. The Co-Sale Notice shall include an offer (the "“Participation Offer"”) by the Transferring Party Co-Seller to include in the proposed Transfer transfer on the terms described in paragraph (c) below a number of shares of Common Stock or Common Preferred Stock Equivalents designated by any of the other PartiesPurchasers, not to exceed, in respect of any such other Party, the product of (A) the sum of the aggregate number of Transferred Securities Co-Sale Shares to be sold by the Transferring Party to the proposed transferee plus the maximum number of shares of Common Stock or Preferred Stock such proposed transferee is willing to purchase from the Purchasers and (B) a fraction with a numerator equal to the number of shares of Fully-Diluted Common Stock held by such other Party the Purchasers and a denominator equal to the number of shares of Fully-Diluted Common Stock held by all Parties; PROVIDED that for purposes of the foregoing, a share of Common Stock, a share of NonCo-Voting Common Stock, a Special Warrant to acquire one share of Common Stock or Non-Voting Common Stock Seller and an Investor Warrant to acquire one share of Common Stock or Non-Voting Common Stock shall all be deemed to be equivalent except that if a Party elects to include Special Warrants or Investor Warrants pursuant to the Participation Offer, then (i) if the consideration to be received in connection with the sale of the Transferred Securities is cash, then the consideration to be received by a Party Transferring Special Warrants or Investor Warrants shall be reduced by the aggregate exercise price of all such warrants to be included and (ii) if the consideration to be received in connection with the sale of the Transferred Securities includes non-cash consideration, then a Party may include Special Warrants or Investor Warrants only if such Party tenders in connection with such sale cash in the aggregate amount of the exercise price of such warrants; PROVIDED FURTHER, HOWEVER, that a Party may not include Investor Warrants in any such sale without first including all shares of Common Stock, Non-Voting Common Stock and Special Warrants owned by it or its AffiliatesPurchasers. (c) Except as set forth herein and in paragraph (b) above, the per share consideration to be received for any shares of Common Stock or Common Preferred Stock Equivalents included in a proposed Transfer transfer hereunder shall be the same per share consideration to be received by the Transferring Party as set forth in the Participation Offer (giving effect to the Proposed Consideration Allocation, if applicable)Offer. Each Party who wishes to include shares of Common Stock and Common Stock Equivalents in the proposed Transfer in accordance with the terms set forth in the Participation Offer The Purchasers shall so notify the Transferring Party Company not more than fifteen five (155) business days after the date of the Co-Sale Notice, failing which such Party the Purchasers shall not be entitled to participate in the proposed Transfer; PROVIDED that if the Participation Offer includes a Proposed Consideration Allocation and the holders of at least a majority of the shares of Common Stock or Common Stock Equivalents that would be entitled to participate in such proposed Transfer pursuant to this Section 3.5 object to the fairness of such Proposed Consideration Allocation, such holders may deliver notice of such objection to the Transferring Party and the Company (an "Objection Notice") within such fifteen (15)-day period, upon which the following terms will apply. Upon timely receipt of an Objection Notice, the Company will as promptly as practicable hire a nationally recognized investment banking firm, not Affiliated with any Party and reasonably acceptable to the Special Committee and the Transferring Party, to evaluate the fairness of the Proposed Consideration Allocation using customary investment banking valuation techniques and, if such investment banking firm determines that such Proposed Consideration Allocation does not represent a fair allocation of the value of the consideration to be received in connection with the proposed transaction to the Common Stock and Common Stock Equivalents to be included in such proposed Transfer, to determine a revised allocation that in the judgment of such investment banking firm would be fair (a "Revised Consideration Allocation"). The Company shall use its commercially reasonable efforts to cause the investment banking firm to make the foregoing determinations within twenty (20) days of receipt of an Objection Notice. The Transferring Party will as promptly as practicable provide such investment banking firm with such information concerning the proposed Transfer and related transactions as shall reasonably be requested by such investment banking firm subject to the execution and delivery of a customary confidentiality agreement. The investment banking firm shall notify the Company, the Transferring Party and each other Party of its determination, including the terms of its Revised Consideration Allocation, if any (the "Determination Notice"). If the investment banking firm determines that the Proposed Consideration Allocation was fair, then each Party who wishes to include shares of Common Stock and Common Stock Equivalents in the proposed Transfer in accordance with the terms set forth in the Participation Offer shall so notify the Transferring Party not more than ten (10) days after the date of the Determination Notice, failing which such Party shall not be entitled to participate in the proposed Transfer. If the investment banking firm determines that the Proposed Consideration Allocation was not fair and provides a Revised Consideration Allocation, then each Party who wishes to include shares of Common Stock and Common Stock Equivalents in the proposed Transfer in accordance with the terms set forth in the Participation Offer revised to reflect the Revised Consideration Allocation shall so notify the Transferring Party not more than ten (10) days after the date of the Determination Notice, failing which such Party shall not be entitled to participate in the proposed Transfer; PROVIDED, HOWEVER, that in any event, the Transferring Party may elect not to proceed with the proposed Transfer for any reason. The fees and expenses of any investment banking firm hired for the foregoing purposes shall be borne by the Companytransfer. (d) The Participation Offer shall be conditioned upon the Transferring Party's Transfer actual transfer of Transferred Securities Co-Sale Shares pursuant to the transactions contemplated in the Co-Sale Notice with the transferee named therein. If any other Party or other Parties have accepted the Purchasers accept the Participation Offer, the Transferring Party number of Co-Sale Shares shall reduce be reduced to the extent necessary the number of Transferred Securities it otherwise would have Transferred in the proposed Transfer so as to permit other Parties who have accepted the Participation Offer Purchasers to sell the number of shares that they are entitled to sell under this Section 3.57.3, and the Transferring Party Co-Seller and such other Party or other Parties the Purchasers shall sell the number of shares specified in the Participation Offer to the proposed transferee in accordance with the terms of such sale as set forth in the Co-Sale Notice. Any Party other than If the Transferring Party who participates in a Transfer proposed transferee refuses to purchase from the Purchasers the number of shares that they are entitled to sell under this Section 3.5 7.3, then (i) the Co-Seller shall be entitled to sell up to the number of shares specified in the Participation Offer to the proposed transferee in accordance with the terms of such sale as set forth in the Co-Sale Notice and (ii) the Co-Seller shall then purchase from the Purchasers, on the terms set forth in the Co-Sale Notice, up to the number of shares that they would have been entitled to sell under this Section 7.3 had the proposed transferee purchased such shares directly from the Purchasers in accordance with the terms of this Section 7.3. The Purchasers shall not be liable under this Section 7.3 for any transaction costs associated with such a Transfer transfer other than the legal costs incurred by that Party and, if the Transferring Party is obligated to pay selling commissions, then a pro rata portion of such selling commissionsPurchasers. (e) Each such Party to a Transfer pursuant to this Section 3.5 The Purchasers shall not be required to make any representations or warranties in connection with such Transfer a transfer pursuant to this Section 7.3 other than representations and warranties as to (i) such Person's the Purchasers’ ownership of the shares of Common Stock and Common or Preferred Stock Equivalents to be Transferred transferred free and clear of all liens, claims and other encumbrances other than those arising under this AgreementAgreement or the constituent documents of the Company, (ii) such Party's the Purchasers’ power and authority to effect such Transfertransfer, and (iii) such matters pertaining to compliance with securities laws Laws as the transferee may reasonably require; provided, however, for the avoidance of doubt the parties acknowledge that the consideration to be received by the Co-Seller and the Purchasers may consist of, among other things, an interest in an escrow account, a security or other consideration, the ultimate value of which may be dependent upon, among other things, the accuracy of representations and warranties relating to the Company and its business or the future performance of the Company; provided, however, any liability with respect of the Purchasers to any indemnification claim relating to representations and warranties, covenants or other agreements relating to the Company or any Co-Seller shall be several (and not joint and several) and the Purchasers’ liability with respect to such claims shall not exceed their proportionate share thereof based on their Fully-Diluted Common Stock ownership percentage relative to the Co-Seller. (f) The closing of such purchase by the transferee shall be on the same date that the transferee acquires Transferred Securities from the Transferring PartyCo-Sale Shares, provided that such other Parties are the Purchasers have been given twenty (20) days advance notice of such closing; PROVIDED FURTHERprovided further, HOWEVERhowever, that any such closing shall be delayed, to the extent required required, until two (2) Business Days following the expiration of any required waiting periods under the HSR Act and the FPA and next succeeding business day after the obtaining of all other governmental approvals reasonably deemed necessary by a Partyparty to the transfer. (g) Each Party who participates in a Transfer pursuant to this Section 3.5 shall promptly perform, whether before or after any such closing, such additional acts (including, without limitation, executing and delivering additional documents) as are reasonably required to effect more fully the transactions contemplated by this Section 3.5.