Common use of Exceptions to Preemptive Rights Clause in Contracts

Exceptions to Preemptive Rights. Section 4.1.1 (a) shall not apply ------------------------------- ------------- to (i) issuances or sales of Common Stock or Common Stock Equivalents upon exercise, conversion or exchange of any Common Stock Equivalent which, when issued, was subject to or exempt from the preemptive rights provided under this Section 4.1, (ii) shares of capital stock issued in a stock split or stock ----------- dividend or shares of capital stock or other securities distributed ratably or sold to all holders of Common Stock on a per share equivalent basis, (iii) issuances of Common Stock or Common Stock Equivalents pursuant to any exercise, conversion or exchange of any Common Stock Equivalent that was outstanding as of the date of this Stockholders Agreement, (iv) issuances of Common Stock Equivalents pursuant to the Purchase Agreement, (v) issuances or sales of Common Stock or Common Stock Equivalents pursuant to acquisitions or strategic investments or corporate partnering transactions or relationships, (vi) issuances of Common Stock or Common Stock Equivalents pursuant to a merger of the Company or a Subsidiary of the Company into or with another entity or pursuant to an acquisition by the Company or a Subsidiary of the Company of the capital stock or assets of another business, (vii) compensatory issuances of options, restricted stock or other equity rights to officers, employees, directors or consultants of the Company with approval of the Board of Directors of the Company, (viii) issuances or sales of Common Stock in a Qualified IPO, (ix) issuances of Common Stock or Common Stock Equivalents pursuant to commercial transactions approved by the Board of Directors of the Company (including but not limited to equipment leases or bank lines of credit), or (x) issuances of Common Stock or Common Stock Equivalents approved in advance by holders of a majority of the Fully-Diluted Common Stock held by all Holders.

Exceptions to Preemptive Rights. Section 4.1.1 (a) 3.1.1 hereof shall not apply ------------------------------- ------------- to (ia) issuances or sales of shares of Common Stock or Common Stock Equivalents upon exercise, conversion or exchange of any Common Stock Equivalent whichthat, when issued, was subject to or exempt from the preemptive rights provided under this Section 4.13.1, (iib) shares of capital stock issued in a stock split Common Stock or stock ----------- dividend Common Stock Equivalents distributed or shares of capital stock or other securities distributed set aside ratably or sold to all holders of Common Stock or Common Stock Equivalents (or any class or series thereof) on a per share equivalent basis, (iiic) issuances or sales of shares of Common Stock or Common Stock Equivalents pursuant to any exercisea bona fide registered underwritten public offering, conversion or exchange of any Common Stock Equivalent that was outstanding as of the date of this Stockholders Agreement, (iv) issuances of Common Stock Equivalents pursuant to the Purchase Agreement, (v) issuances or sales of Common Stock or Common Stock Equivalents pursuant to acquisitions or strategic investments or corporate partnering transactions or relationships, (vi) issuances of Common Stock or Common Stock Equivalents pursuant to a merger of the Company or a Subsidiary of the Company into or with another entity not affiliated with the Company or any of its Affiliates or pursuant to an acquisition by the Company or a Subsidiary of the Company of the capital stock or assets of another businessbusiness entity or business segment of any such entity (or substantially all of the assets thereof) not affiliated with the Company of any of its Affiliates, (viid) compensatory issuances or sales of optionsshares of Common Stock or Common Stock Equivalents to employees, restricted stock or other equity rights to officers, employeesconsultants, and/or directors or consultants of the Company with approval and/or any of its Subsidiaries pursuant to the Incentive Option Plan or any other compensation plan approved by the Board (which shall include one of the SN Designees for so long as a SN Designee is entitled to be a member of the compensation committee of the Board of Directors pursuant to Section 4.1.4) or compensation committee of the CompanyBoard (which shall include one of the SN Designees for so long as a SN Designee is entitled to be a member of the compensation committee of the Board pursuant to Section 4.1.4), (viiie) issuances or sales of Common Stock in a Qualified IPOpursuant to the Plan, including but not limited to the Rights Offering, upon exercise of the New Warrants and upon conversion of the 9% Preference Shares, (ixf) issuances of shares of Common Stock or Common Stock Equivalents pursuant to commercial transactions approved by in payment of all or any portion of the Board of Directors principal of, or interest or premium on, any unaffiliated third-party indebtedness of the Company or any of its Subsidiaries, (including but not limited g) the issuance of the shares of Senior Preferred Shares and the New Warrants pursuant to equipment leases or bank lines of creditthe Plan (transactions described in clauses (b), (d), (e) and (g) herein referenced as "Exempt Issuances"), or (xh) issuances of shares of Common Stock or Common Stock Equivalents approved in advance by holders connection with the issuance of a majority debt securities of the Fully-Diluted Common Stock held by all HoldersCompany or any of its Subsidiaries.

Exceptions to Preemptive Rights. The Corporation may, subject to compliance with Section 4.1.1 (a) shall not apply ------------------------------- ------------- to 4.13, issue any of the following securities without triggering the Preemptive Rights: (i) issuances or sales Employee Incentive Securities, (ii) shares of Common Stock or Common Stock Equivalents upon exercise, conversion or exchange exercise of any Common Stock Equivalent which, when issued, was subject to or exempt from the preemptive rights provided Preemptive Rights under this Section 4.13.3, (iiiii) shares of capital stock issued in a stock split or stock ----------- dividend or shares of capital stock or other securities distributed or set aside ratably or sold to all holders of Common Stock (or any class or series thereof) on a per share equivalent basis, (iiiiv) shares of Common Stock or other equity securities in a Qualified IPO approved in accordance with Section 5.1, (v) shares of Common Stock or Common Stock Equivalents issued in connection with a merger or consolidation or other business combination of the Corporation or a Subsidiary of the Corporation into or with another entity or an acquisition by the Corporation or a Subsidiary of the Corporation of another business or corporation, (vi) shares of Common Stock in payment of all or any portion of the principal of, or interest or premium on, any indebtedness of the Corporation or any of its Subsidiaries, (vii) shares of Preferred Stock of the Corporation that are not Common Stock Equivalents, (viii) shares of Common Stock Equivalents that are attached to or otherwise issued in connection with indebtedness of the Corporation, (ix) shares of Common Stock issuable in exchange for shares of exchangeable capital stock of any of the Corporation’s Subsidiaries, (x) shares of Common Stock issued pursuant to Section 3.1 of the Class B Stockholders Agreement, dated as of August 15, 2000, among the Corporation, OMERS, Onex, and Onex HOC in connection with a Pre-IPO Private Placement (as defined therein) or a Qualified IPO; or (xi) shares of Common Stock to the Onex Group or OMERS Group in accordance with any agreement providing such Persons protection against certain dilutive events; provided, however, that the OMERS Group shall retain Preemptive Rights with respect to issuances of Common Stock or Common Stock Equivalents pursuant under the circumstances described in clauses (vi) and (viii) (herein, the “Special Preemptive Rights”), but only to any exercise, conversion or exchange of any Common Stock Equivalent the extent that was outstanding as the indebtedness involved is owed to an Affiliate of the date of this Stockholders Agreement, Corporation or to Onex (iv) other than issuances of Common Stock Equivalents pursuant to upon conversion of that certain Convertible Promissory Note in the Purchase Agreementprincipal amount of $25,000,000 originally issued on July 5, (v) issuances or sales 2000 in favor of Common Stock or Common Stock Equivalents pursuant to acquisitions or strategic investments or corporate partnering transactions or relationshipsOnex Corporation, (vi) issuances of Common Stock or Common Stock Equivalents pursuant to a merger of the Company or a Subsidiary of the Company into or with another entity or pursuant to an acquisition as replaced and superceded by the Company or a Subsidiary Convertible Promissory Note in the principal amount of the Company of the capital stock or assets of another business$25,000,000 dated August 15, (vii) compensatory issuances of options, restricted stock or other equity rights to officers, employees, directors or consultants of the Company with approval of the Board of Directors of the Company, (viii) issuances or sales of Common Stock in a Qualified IPO, (ix) issuances of Common Stock or Common Stock Equivalents pursuant to commercial transactions approved by the Board of Directors of the Company (including but not limited to equipment leases or bank lines of credit)2000, or (x) issuances of Common Stock or Common Stock Equivalents approved in advance by holders of a majority of the Fully-Diluted Common Stock held by all Holderssubsequent replacements thereof).

Exceptions to Preemptive Rights. This Section 4.1.1 (a) 4.1 shall not apply ------------------------------- ------------- to (i) issuances or sales of Common Stock or Common Stock Equivalents to employees, officers, and/or directors of the Company and/or any of its Subsidiaries pursuant to employee benefit or similar plans or arrangements of the Company and/or its Subsidiaries, (ii) issuances or sales of Common Stock or Common Stock Equivalents upon exercise, conversion or exchange exercise of any Common Stock Equivalent which, when issued, was subject to or exempt from the preemptive rights provided under this Section 4.1, (iiiii) shares of capital stock issued in a stock split or stock ----------- dividend or shares of capital stock or other securities distributed or set aside ratably or sold to all holders of Common Stock and Common Stock Equivalents (or any class or series thereof) on a per share equivalent basis, (iii) issuances of Common Stock or Common Stock Equivalents pursuant to any exercise, conversion or exchange of any Common Stock Equivalent that was outstanding as of the date of this Stockholders Agreement, (iv) issuances of Common Stock Equivalents pursuant to the Purchase Agreement, (v) issuances or sales of Common Stock or Common Stock Equivalents pursuant to acquisitions or strategic investments or corporate partnering transactions or relationshipsa registered underwritten public offering, (vi) issuances of Common Stock or Common Stock Equivalents pursuant to a merger of the Company or a Subsidiary subsidiary of the Company into or with another entity or pursuant to an acquisition by the Company or of a Subsidiary subsidiary of the Company of the capital stock or assets of another business, business or corporation or (vii) compensatory issuances of options, restricted stock or other equity rights to officers, employees, directors or consultants of the Company with approval of the Board of Directors of the Company, (viiiv) issuances or sales of Common Stock or Common Stock Equivalence in a Qualified IPOconjunction with the private placement or public sale of any class or series of the preferred stock of the Company ("Preferred Stock"), (ix) and rights, warrants, options, convertible securities or convertible indebtedness, exchangeable securities or exchangeable indebtedness, or other rights exercisable for or convertible or exchangeable into, directly or indirectly, Preferred Stock, or indebtedness of the Company. In the event of any issuances or sales of Common Stock or Common Stock Equivalents pursuant to commercial transactions approved by the Board of Directors as a unit with any other security of the Company (including but not limited or its Subsidiaries, the preemptive rights under this Section shall be applicable to equipment leases or bank lines of credit), or (x) issuances of the entire unit rather than only the Common Stock or Common Stock Equivalents approved Equivalent included in advance by holders of a majority of the Fully-Diluted Common Stock held by all Holdersunit.

Exceptions to Preemptive Rights. The Corporation may, subject to compliance with Section 4.1.1 (a) shall not apply ------------------------------- ------------- to 4.4 hereof, issue any of the following securities without triggering the Preemptive Rights: (i) issuances or sales Employee Incentive Securities, (ii) shares of Common Stock or Common Stock Equivalents upon exercise, conversion or exchange exercise of any Common Stock Equivalent which, when issued, was subject to or exempt from the preemptive rights provided Preemptive Rights under this Section 4.13.3, (iiiii) shares of capital stock issued in a stock split or stock ----------- dividend or shares of capital stock or other securities distributed or set aside ratably or sold to all holders of Common Stock (or any class or series thereof) on a per share equivalent basis, (iiiiv) shares of Common Stock or other equity securities in a Qualified IPO approved in accordance with Section 5.1, (v) shares of Common Stock or Common Stock Equivalents issued in connection with a merger or consolidation or other business combination of the Corporation or a Subsidiary of the Corporation into or with another entity or an acquisition by the Corporation or a Subsidiary of the Corporation of another business or corporation, (vi) shares of Common Stock in payment of all or any portion of the principal of, or interest or premium on, any indebtedness of the Corporation or any of its Subsidiaries, (vii) shares of Preferred Stock of the Corporation that are not Common Stock Equivalents, (viii) shares of Common Stock Equivalents that are attached to or otherwise issued in connection with indebtedness of the Corporation, (ix) shares of Common Stock issuable in exchange for shares of exchangeable capital stock of any of the Corporation’s Subsidiaries, (x) shares of Common Stock issued pursuant to Section 3.1 of the Class B Stockholders Agreement, dated as of August 15, 2000, among the Corporation, OMERS, Onex, and Onex HOC in connection with a Pre-IPO Private Placement (as defined in the Class B Stockholders Agreement) or a Qualified IPO; (xi) shares of Common Stock issued pursuant to Section 5.3 of this Stockholders Agreement in connection with the Pre-IPO Private Placement (as defined below) or a Qualified IPO; or (xii) shares of Common Stock to the Onex Group or the OMERS Group in accordance with any agreement providing such Persons protection against certain dilutive events; provided, however, that each of the OMERS Group and the XXXX Group shall retain Preemptive Rights with respect to issuances of Common Stock or Common Stock Equivalents pursuant to any exercise, conversion or exchange of any Common Stock Equivalent that was outstanding as of under the date of this Stockholders Agreement, (iv) issuances of Common Stock Equivalents pursuant to the Purchase Agreement, (v) issuances or sales of Common Stock or Common Stock Equivalents pursuant to acquisitions or strategic investments or corporate partnering transactions or relationships, circumstances described in clauses (vi) issuances of Common Stock or Common Stock Equivalents pursuant to a merger of the Company or a Subsidiary of the Company into or with another entity or pursuant to an acquisition by the Company or a Subsidiary of the Company of the capital stock or assets of another business, (vii) compensatory issuances of options, restricted stock or other equity rights to officers, employees, directors or consultants of the Company with approval of the Board of Directors of the Company, and (viii) issuances or sales of Common Stock in a Qualified IPO(herein, (ix) issuances of Common Stock or Common Stock Equivalents pursuant the “Special Preemptive Rights”), but only to commercial transactions approved by the Board of Directors extent that the indebtedness involved is owed to an Affiliate of the Company (including but not limited Corporation or to equipment leases or bank lines of credit), or (x) issuances of Common Stock or Common Stock Equivalents approved in advance by holders of a majority of the Fully-Diluted Common Stock held by all HoldersOnex.

Exceptions to Preemptive Rights. Section 4.1.1 (a) shall not apply ------------------------------- ------------- to (i) issuances or sales of Common Stock or Common Stock Equivalents upon exercise, conversion or exchange of any Common Stock Equivalent which, when issued, was subject to or exempt from the preemptive rights provided under this Section 4.1, (ii) shares of capital stock issued in a stock split or stock ----------- dividend or shares of capital stock or other securities distributed ratably or sold to all holders of Common Stock on a per share equivalent basis, (iii) issuances of Common Stock or Common Stock Equivalents pursuant to any exercise, conversion or exchange of any Common Stock Equivalent that was outstanding as of the date of this Stockholders Agreement, (iv) issuances of Common Stock Equivalents pursuant to the Stock Purchase Agreement, (v) issuances or sales of Common Stock or Common Stock Equivalents pursuant to acquisitions or strategic investments or corporate partnering transactions or relationships, (vi) issuances of Common Stock or Common Stock Equivalents pursuant to a merger of the Company or a Subsidiary of the Company into or with another entity or pursuant to an acquisition by the Company or a Subsidiary of the Company of the capital stock or assets of another business, (vii) compensatory issuances of options, restricted stock or other equity rights to officers, employees, directors or consultants of the Company with approval of the Board of Directors of the Company, (viii) issuances or sales of Common Stock in a Qualified IPO, (ix) issuances of Common Stock or Common Stock Equivalents pursuant to commercial transactions approved by the Board of Directors of the Company (including but not limited to equipment leases or bank lines of credit), or (x) issuances of Common Stock or Common Stock Equivalents approved in advance by holders of a majority of the Fully-Diluted Common Stock held by all Holders.