Common use of Drag-Along Obligations Clause in Contracts

Drag-Along Obligations. (i) Except for a Permitted Transfer, if any Investor or Investors representing more than fifty percent (50%) of the voting power of the capital stock of the Company (individually or collectively, the “Exiting Holders”), acting together or pursuant to a common plan, understanding or arrangement (A) enter into an agreement to Transfer to any Person, in a bona fide arm’s-length transaction to one or more third parties none of which is an Affiliate or Associate of any Exiting Holder, all the Common Stock beneficially owned by such Exiting Holders, (B) request that the Company or any subsidiary thereof consolidate or merge with any Person which is not an Affiliate or Associate of any Exiting Holder in a bona fide arm’s-length transaction (in a consolidation or merger in which (1) Holders receive cash or securities of any other Person upon such consolidation or merger and (2) such Person and/or its Affiliates become the beneficial owner of more than fifty percent (50%) of the voting power of the capital stock of (x) the Company or (y) any subsidiary or subsidiaries of the Company owning, controlling or otherwise constituting a majority of the consolidated assets of the Company and its subsidiaries taken as a whole (based on value) (a “Merger”)) or (C) request that the Company sell all or substantially all the assets of the Company and its subsidiaries, to a Person which is not an Affiliate or Associate of any Exiting Holder in a bona fide arm’s-length transaction in which Holders receive cash or securities of such other Person upon completion of such transaction (the Person referred to in clause (A), clause (B) or clause (C) being referred to herein as “Exit Transferees” and any of the transactions referred to in clause (A), clause (B) or clause (C) being referred to herein as an “Exit Transfer”; provided, that in no event shall an Exit Transfer be deemed to include any transaction effected solely for the purpose of changing, directly or indirectly, the form of organization or the organizational structure of the Company or any of its subsidiaries), then, subject to the terms of this Section 3(b), such Exiting Holders may elect to require that each of the other Holders (each, a “Drag-Along Holder”) Transfer to such Exit Transferees all the Common Stock beneficially owned by such Drag-Along Holder, on the same terms and conditions as those applicable to the Exiting Holders (in the case of clause (A) and/or that each Drag-Along Holder vote (or consent in writing, as the case may be) in favor of the Merger or sale of assets (in the case of clause (B) or clause (C)). (ii) The Exiting Holders shall exercise the rights in Section 3(b)(i) by providing to the Company written notice of any Exit Transfer (the “Drag-Along Notice”), setting forth the terms of the proposed Exit Transfer (including the identity of the counterparties thereto) and the proposed closing date. The Company shall provide each Drag-Along Holder with a copy of the Drag-Along Notice within three (3) Business Days of receipt from the Exiting Holder. (iii) All Transfers pursuant to this Section 3(b) shall be consummated contemporaneously at the principal offices of the Company on the later of (i) a Business Day not less than fifteen (15) or more than sixty (60) days after the Drag-Along Notice is delivered to Drag-Along Holders or (ii) the fifth Business Day following the expiration or termination of all waiting periods under HSR, to the extent applicable to such Transfer, or at such other time or place as the Exiting Holders and the Exit Transferees may agree. The certificates or other instruments evidencing the Common Stock Transferred pursuant to the Exit Transfer shall be duly endorsed for transfer, and delivered on such closing date against payment for the purchase price of such Common Stock, together with all other documents which are necessary to effect such Transfer. (iv) All Drag-Along Holders shall execute and deliver any documents reasonably requested by the Exiting Holders, including any agreement containing indemnification obligations (which shall be several and not joint obligations and shall be no more extensive or adverse to any Drag-Along Holder than those applicable to the Exiting Holders) on the part of the Exiting Holders and each Drag-Along Holder, provided that the indemnification obligation of each Drag-Along Holder shall solely consist of and (A) shall be limited to the percentage of such consideration that is equal to any comparable percentage limitation with respect to the consideration payable to the Exiting Holders, in the case of representations and warranties made by such Drag-Along Holder (which shall be limited to customary representations regarding its existence, authority to participate in such Exit Transfer, due execution, ownership of its Common Stock and ability to Transfer such Common Stock free and clear of all liens and other encumbrances, as applicable), (B) shall be computed pro rata based on the aggregate consideration payable to all Holders, in the case of representations and warranties made by the Company, and (C) shall not under any circumstances exceed in the aggregate the net proceeds actually paid to such Drag-Along Holder upon completion of the transaction. Any documented and reasonable costs and expenses incurred directly in connection with the Exit Transfer by the Exiting Holders shall be paid out of the gross proceeds of the Exit Transfer to the extent permissible by the terms and conditions of such Exit Transfer, and, if so permissible, no Drag-Along Holder shall have any direct liability for any such costs and expenses. No Drag-Along Holder shall be required to agree to any restrictive covenant in connection with any Exit Transfer. In addition, the Drag-Along Holders shall not exercise any rights of appraisal or dissenters rights that such Holder may have (whether under applicable law or otherwise) or could potentially have or acquire in connection with any Exit Transfer or any other proposal that is necessary or desirable to consummate the Exit Transfer. (v) Notwithstanding anything to the contrary contained herein, (A) each Drag-Along Holder shall be treated equally and on a pro rata basis with each other Drag-Along Holder and the Exiting Holders, and (B) no Exiting Holder shall be entitled, directly or indirectly, to receive a control premium or an extra or special benefit not shared on a pro rata basis by all other holders of Common Stock (excluding any preferential rights of any Security expressly set forth in the Certificate of Incorporation) with respect to such Exiting Holder’s shares.

Drag-Along Obligations. 8.1 If after five (5) years from the date of this Agreement, the Holders holding a majority of the Common Stock Equivalents then held by all Holders approve of a proposed Acquisition (as defined below), then, in any such event, each of the Existing Stockholders shall (i) Except be present, in person or by proxy, as a holder of shares of voting securities, at all meetings for the vote upon any such proposed Acquisition (so as to be counted for the purposes of determining the presence of a Permitted Transferquorum at such meetings); (ii) vote, if or give his, her or its written consent with respect to, all shares of capital stock held by him, her or it in favor of such proposed Acquisition and in opposition of any Investor proposal that could reasonably be expected to delay or Investors representing impair the consummation of any such proposed Acquisition; (iii) refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to or in connection with such proposed Acquisition; (iv) not transfer or deposit any shares of capital stock beneficially owned by him, her or it to or into a voting trust or subject any such shares of capital stock to any arrangement or agreement with respect to the voting of such shares of capital stock; and (v) take all actions reasonably necessary to consummate the proposed Acquisition, including without limitation amending the then existing Certificate of Incorporation of the Company. 8.2 For purposes of this Section 8, an “Acquisition” shall mean (i) the acquisition of the Company by one or more than fifty percent entities by means of a transaction or series of related transactions (50%including, without limitation, any reorganization, merger or consolidation or recapitalization, but excluding any merger effected exclusively for the purpose of changing the domicile of the Company) unless the Company’s stockholders of record as constituted immediately prior to such transaction or series of transactions will, immediately after such transaction or series of transaction, hold (by virtue of securities issued in consideration of the Company’s securities) a majority of the voting power of the capital stock resulting or surviving entity, (ii) the sale, transfer or lease (but not including a transfer or lease by pledge or mortgage to a bona fide lender) of all or substantially all of the assets of the Company, whether in a single transaction or in a series of related transactions, or (iii) the closing of the transfer (whether by merger, consolidation or otherwise, but excluding any merger effected exclusively for the purpose of changing the domicile of the Company (individually and any transaction or collectively, series of related transactions the “Exiting Holders”sole purpose of which is to create a holding company that is owned in substantially the same proportions by the persons who held the Company’s securities immediately prior to such transaction or series of related transactions), acting together or pursuant to a common plan, understanding or arrangement (A) enter into an agreement to Transfer to any Person, in a bona fide arm’s-length transaction or series of related transactions, to one a person or more third parties none group of which is an Affiliate affiliated persons, of the Company’s securities if, after such closing, such person or Associate group of any Exiting Holder, all the Common Stock beneficially owned by such Exiting Holders, (B) request that the Company or any subsidiary thereof consolidate or merge with any Person which is not an Affiliate or Associate of any Exiting Holder in affiliated persons would hold a bona fide arm’s-length transaction (in a consolidation or merger in which (1) Holders receive cash or securities of any other Person upon such consolidation or merger and (2) such Person and/or its Affiliates become the beneficial owner of more than fifty percent (50%) majority of the voting power of the capital stock of (x) the Company or (y) any subsidiary or subsidiaries of the Company owning, controlling or otherwise constituting a majority of the consolidated assets of the Company and its subsidiaries taken as a whole (based on value) (a “Merger”)) or (C) request that the Company sell all or substantially all the assets of the Company and its subsidiaries, to a Person which is not an Affiliate or Associate of any Exiting Holder in a bona fide arm’s-length transaction in which Holders receive cash or securities of such other Person upon completion of such transaction (the Person referred to in clause (A), clause (B) or clause (C) being referred to herein as “Exit Transferees” and any of the transactions referred to in clause (A), clause (B) or clause (C) being referred to herein as an “Exit Transfer”; provided, that in no event shall an Exit Transfer be deemed to include any transaction effected solely for the purpose of changing, directly or indirectly, the form of organization or the organizational structure of the Company or any of its subsidiaries), then, subject to the terms of this Section 3(b), such Exiting Holders may elect to require that each of the other Holders (each, a “Drag-Along Holder”) Transfer to such Exit Transferees all the Common Stock beneficially owned by such Drag-Along Holder, on the same terms and conditions as those applicable to the Exiting Holders (in the case of clause (A) and/or that each Drag-Along Holder vote (or consent in writing, as the case may be) in favor of the Merger or sale of assets (in the case of clause (B) or clause (C))Company. (ii) The Exiting Holders shall exercise the rights in Section 3(b)(i) by providing to the Company written notice of any Exit Transfer (the “Drag-Along Notice”), setting forth the terms of the proposed Exit Transfer (including the identity of the counterparties thereto) and the proposed closing date. The Company shall provide each Drag-Along Holder with a copy of the Drag-Along Notice within three (3) Business Days of receipt from the Exiting Holder. (iii) All Transfers pursuant to this Section 3(b) shall be consummated contemporaneously at the principal offices of the Company on the later of (i) a Business Day not less than fifteen (15) or more than sixty (60) days after the Drag-Along Notice is delivered to Drag-Along Holders or (ii) the fifth Business Day following the expiration or termination of all waiting periods under HSR, to the extent applicable to such Transfer, or at such other time or place as the Exiting Holders and the Exit Transferees may agree. The certificates or other instruments evidencing the Common Stock Transferred pursuant to the Exit Transfer shall be duly endorsed for transfer, and delivered on such closing date against payment for the purchase price of such Common Stock, together with all other documents which are necessary to effect such Transfer. (iv) All Drag-Along Holders shall execute and deliver any documents reasonably requested by the Exiting Holders, including any agreement containing indemnification obligations (which shall be several and not joint obligations and shall be no more extensive or adverse to any Drag-Along Holder than those applicable to the Exiting Holders) on the part of the Exiting Holders and each Drag-Along Holder, provided that the indemnification obligation of each Drag-Along Holder shall solely consist of and (A) shall be limited to the percentage of such consideration that is equal to any comparable percentage limitation with respect to the consideration payable to the Exiting Holders, in the case of representations and warranties made by such Drag-Along Holder (which shall be limited to customary representations regarding its existence, authority to participate in such Exit Transfer, due execution, ownership of its Common Stock and ability to Transfer such Common Stock free and clear of all liens and other encumbrances, as applicable), (B) shall be computed pro rata based on the aggregate consideration payable to all Holders, in the case of representations and warranties made by the Company, and (C) shall not under any circumstances exceed in the aggregate the net proceeds actually paid to such Drag-Along Holder upon completion of the transaction. Any documented and reasonable costs and expenses incurred directly in connection with the Exit Transfer by the Exiting Holders shall be paid out of the gross proceeds of the Exit Transfer to the extent permissible by the terms and conditions of such Exit Transfer, and, if so permissible, no Drag-Along Holder shall have any direct liability for any such costs and expenses. No Drag-Along Holder shall be required to agree to any restrictive covenant in connection with any Exit Transfer. In addition, the Drag-Along Holders shall not exercise any rights of appraisal or dissenters rights that such Holder may have (whether under applicable law or otherwise) or could potentially have or acquire in connection with any Exit Transfer or any other proposal that is necessary or desirable to consummate the Exit Transfer. (v) Notwithstanding anything to the contrary contained herein, (A) each Drag-Along Holder shall be treated equally and on a pro rata basis with each other Drag-Along Holder and the Exiting Holders, and (B) no Exiting Holder shall be entitled, directly or indirectly, to receive a control premium or an extra or special benefit not shared on a pro rata basis by all other holders of Common Stock (excluding any preferential rights of any Security expressly set forth in the Certificate of Incorporation) with respect to such Exiting Holder’s shares.

Drag-Along Obligations. (i) Except for a Permitted Transfer, if any Investor or Investors representing more than fifty percent (50%) of the voting power of the capital stock of the Company (individually or collectively, the “Exiting Holders”), acting together or pursuant to a common plan, understanding or arrangement (A) enter into an agreement to Transfer to any Person, in a bona fide arm’s-length transaction to one or more third parties none of which is an Affiliate or Associate of any Exiting Holder, all the Common Stock beneficially owned by such Exiting Holders, (B) request that the Company or any subsidiary thereof consolidate or merge with any Person which is not an Affiliate or Associate of any Exiting Holder in a bona fide arm’s-length transaction (in a consolidation or merger in which (1) Holders receive cash or securities of any other Person upon such consolidation or merger and (2) such Person and/or its Affiliates become the beneficial owner of more than fifty percent (50%) of the voting power of the capital stock of (x) the Company or (y) any subsidiary or subsidiaries of the Company owning, controlling or otherwise constituting a majority of the consolidated assets of the Company and its subsidiaries taken as a whole (based on value) (a “Merger”)) or (C) request that the Company sell all or substantially all the assets of the Company and its subsidiaries, to a Person which is not an Affiliate or Associate of any Exiting Holder in a bona fide arm’s-length transaction in which Holders receive cash or securities of such other Person upon completion of such transaction (the Person referred to in clause (A), clause (B) or clause (C) being referred to herein as “Exit Transferees” and any of the transactions referred to in clause (A), clause (B) or clause (C) being referred to herein as an “Exit Transfer”; provided, that in no event shall an Exit Transfer be deemed to include any transaction effected solely for the purpose of changing, directly or indirectly, the form of organization or the organizational structure of the Company or any of its subsidiaries), then, subject to the terms of this Section 3(b), such Exiting Holders may elect to require that each of the other Holders (each, a “Drag-Along Holder”) Transfer to such Exit Transferees all the Common Stock beneficially owned by such Drag-Along Holder, on the same terms and conditions as those applicable to the Exiting Holders (in the case of clause (A) and/or that each Drag-Along Holder vote (or consent in writing, as the case may be) in favor of the Merger or sale of assets (in the case of clause (B) or clause (C)). (ii) The Exiting Holders shall exercise the rights in Section 3(b)(i) by providing to the Company written notice of any Exit Transfer (the “Drag-Along Notice”), setting forth the terms of the proposed Exit Transfer (including the identity of the counterparties thereto) and the proposed closing date. The Company shall provide each Drag-Along Holder with a copy of the Drag-Along Notice within three (3) Business Days of receipt from the Exiting Holder. (iii) All Transfers pursuant to this Section 3(b) shall be consummated contemporaneously at the principal offices of the Company on the later of (i) a Business Day not less than fifteen (15) or more than sixty (60) days after the Drag-Along Notice is delivered to Drag-Along Holders or (ii) the fifth Business Day following the expiration or termination of all waiting periods under HSR, to the extent applicable to such Transfer, or at such other time or place as the Exiting Holders and the Exit Transferees may agree. The certificates or other instruments evidencing the Common Stock Transferred pursuant to the Exit Transfer shall be duly endorsed for transfer, and delivered on such closing date against payment for the purchase price of such Common Stock, together with all other documents which are necessary to effect such Transfer. (iv) All Drag-Along Holders shall execute and deliver any documents reasonably requested by the Exiting Holders, including any agreement containing indemnification obligations (which shall be several and not joint obligations and shall be no more extensive or adverse to any Drag-Along Holder than those applicable to the Exiting Holders) on the part of the Exiting Holders and each Drag-Along Holder, provided that the indemnification obligation of each Drag-Along Holder shall solely consist of and (A) shall be limited to the percentage of such consideration that is equal to any comparable percentage limitation with respect to the consideration payable to the Exiting Holders, in the case of representations and warranties made by such Drag-Along Holder (which shall be limited to customary representations regarding its existence, authority to participate in such Exit Transfer, due execution, ownership of its Common Stock and ability to Transfer such Common Stock free and clear of all liens and other encumbrances, as applicable), (B) shall be computed pro rata based on the aggregate consideration payable to all Holders, in the case of representations and warranties made by the Company, and (C) shall not under any circumstances exceed in the aggregate the net proceeds actually paid to such Drag-Along Holder upon completion of the transaction. Any documented and reasonable costs and expenses incurred directly in connection with the Exit Transfer by the Exiting Holders shall be paid out of the gross proceeds of the Exit Transfer to the extent permissible by the terms and conditions of such Exit Transfer, and, if so permissible, no Drag-Along Holder shall have any direct liability for any such costs and expenses. No Drag-Along Holder shall be required to agree to any restrictive covenant in connection with any Exit Transfer. In addition, the Drag-Along Holders shall not exercise any rights of appraisal or dissenters rights that such Holder may have (whether under applicable law or otherwise) or could potentially have or acquire in connection with any Exit Transfer or any other proposal that is necessary or desirable to consummate the Exit Transfer. (v) Notwithstanding anything to the contrary contained herein, (A) each Drag-Along Holder shall be treated equally and on a pro rata basis with each other Drag-Along Holder and the Exiting Holders, and (B) no Exiting Holder shall be entitled, directly or indirectly, to receive a control premium or an extra or special benefit not shared on a pro rata basis by all other holders of Common Stock (excluding any preferential rights of any Security expressly set forth in the Certificate of Incorporation) with respect to such Exiting Holder’s shares. (vi) Notwithstanding the foregoing, the preceding provisions of Section 3(b) shall not apply to Deutsche Bank Securities Inc. or its Affiliates, with the exception of the last sentence of Section 3(b)(iv), which shall apply. Nothing contained herein shall affect Deutsche Bank Securities Inc.’s or its Affiliates’ other rights or obligations under this Agreement.