Common use of Right of First Clause in Contracts

Right of First. Refusal granted by the MHC Members. ------------------------------------------------- (i) If at any time any MHC Member (a "Selling Holder") proposes to -------------- Transfer any Securities (other than pursuant to a Public Sale, pursuant to an Approved Company Sale, or if such Selling Holder is exercising a participation right granted to such Selling Holder pursuant to Section 1(b) or 1(c)), then such Selling Holder will, not fewer than 10 business days prior to making such Transfer, give notice (the "Transfer Notice") to the --------------- ABRY Members, Unger, Koff, Xxxx and to the Company specifying (x) the Securities proposed to be Transferred (the "Offered Securities"), (y) the ------------------ price (the "Offered Price") and the other terms and conditions upon which ------------- such Selling Holder proposes to Transfer such Offered Securities, and (z) with specificity, the proposed transferee(s). After the delivery of a Transfer Notice, the Selling Holder shall in a timely manner provide any ABRY Member with any written information regarding the proposed Transfer as reasonably requested by such ABRY Member. (ii) The Transfer Notice will constitute an irrevocable offer (for the time periods set forth in items (iii) and (iv) below) to Transfer any of the Offered Securities to the Company, Unger, Koff, Xxxx and the ABRY Members at the Offered Price and on the terms specified in the Transfer Notice (the "Offer to Sell"), except that if the proposed Transfer is to be ------------- wholly or partly for consideration other than cash, then the Offer to Sell will constitute an offer to Transfer the Offered Securities to the Company, Unger, Koff, Xxxx and the ABRY Members for a cash purchase price equal to the amount of cash (if any) specified in the Transfer Notice, plus the fair market value determined in the good faith judgement of the Board, at the date of the Transfer Notice, of such non-cash consideration. (iii) The Company will have 7 business days after its receipt of the Transfer Notice (the "Company Exercise Period") during which to notify the ----------------------- Selling Holder, Unger, Xxxx, Xxxx and the ABRY Members in writing of its election to purchase all of the Offered Securities (an "Acceptance ---------- Notice"). ------ (iv) If the Company has not elected to purchase the Offered Securities, the ABRY Members, Xxxxx, Xxxx and Xxxx will have 10 business days after the ABRY Members receipt of the Transfer Notice (the "Members ------- Exercise Period") during which to notify the Selling Holder and the Company --------------- in writing of its election to purchase all of the Offered Securities (which election, if approved by the Board, may state that the Company will purchase a portion of the Offered Securities) (such written notice, also an "Acceptance Notice"). Any Member who delivers an Acceptance Notice ----------------- pursuant to the immediately preceding sentence shall be referred to herein as a "Purchasing Member". If the Purchasing Members elect to purchase in ----------------- the aggregate more than the Offered Securities, then the Offered Securities shall be sold among the Purchasing Members pro rata based upon the number of Class A Units then owned by such Purchasing Members or in such other manner as the Purchasing Members may agree. (v) Upon the delivery of the Acceptance Notice(s), the Company and/or the Purchasing Member(s), as the case may be, and the Selling Holder shall be firmly bound to consummate the purchase and sale of the applicable Offered Securities in accordance with the Transfer Notice, the Acceptance Notice(s) and the terms hereof. Subject to the provisions hereof, within 35 business days after the Selling Holder's receipt of the last Acceptance Notice, the Company and/or the Purchasing Member(s), as the case may be, shall purchase and the Selling Holder shall sell the applicable Offered Securities at a mutually agreeable time and place (the "Offered Securities ------------------ Closing"); provided, that if the applicable Transfer Notice specifies a ------- -------- proposed closing date for such Offered Securities Closing which occurs on any business day during the period beginning on the date 35 business days after the applicable Selling Holder has delivered such Transfer Notice to Xxxxx, Koff, Boyd, the ABRY Members and the Company and ending on the date 45 business days after such Selling Holder has delivered such Transfer Notice to Xxxxx, Koff, Boyd, the ABRY Members and the Company, then such Offered Securities Closing shall occur on such proposed closing date. (vi) At the Offered Securities Closing, the Selling Holder shall deliver to the Company and/or the Purchasing Member(s), as the case may be, certificates representing the Offered Securities (which Offered Securities shall be free and clear of any liens or encumbrances) to be purchased by the Company and/or the Purchasing Member(s), as the case may be, and the Company and/or the Purchasing Member(s), as the case may be, shall deliver to the Selling Holder the applicable purchase price for such Offered Securities by wire transfer of immediately available funds to an account(s) designated by such Selling Holder. (vii) If the Company, Unger, Koff, Xxxx and the ABRY Members collectively do not elect to purchase all of the Offered Securities in accordance with Section 3(iii) and 3(iv), then the Selling Holder may Transfer all of such Offered Securities, at a price which is not less than the price specified in the Transfer Notice and on other terms and conditions which are not materially more favorable in the aggregate to any transferee thereof than those specified in the Transfer Notice, to any Person specified in the applicable Transfer Notice, but only to the extent that such Transfer occurs within 90 days after expiration of the Members Exercise Period. Any Securities not Transferred within such 90-day period will be subject to the provisions of this Section 3 upon subsequent Transfer. (viii) The provisions of this Section 3 shall terminate upon the consummation of a Qualified Public Offering.

Right of First. Refusal granted by Unless it shall have first delivered to the MHC Members. ------------------------------------------------- Buyer, at least seventy two (i72) If at any time any MHC Member hours prior to the closing of such Future Offering (a "Selling Holder") proposes to -------------- Transfer any Securities (other than pursuant to a Public Sale, pursuant to an Approved Company Sale, or if such Selling Holder is exercising a participation right granted to such Selling Holder pursuant to Section 1(b) or 1(c)as defined herein), then such Selling Holder willwritten notice describing the proposed Future Offering, not fewer than 10 business days prior to making such Transfer, give notice (including the "Transfer Notice") to the --------------- ABRY Members, Unger, Koff, Xxxx and to the Company specifying (x) the Securities proposed to be Transferred (the "Offered Securities"), (y) the ------------------ price (the "Offered Price") and the other terms and conditions upon which ------------- such Selling Holder proposes to Transfer such Offered Securitiesthereof, and providing the Buyer an option during the seventy two (z72) with specificity, the proposed transferee(s). After the hour period following delivery of a Transfer Notice, the Selling Holder shall in a timely manner provide any ABRY Member with any written information regarding the proposed Transfer as reasonably requested by such ABRY Member. (ii) The Transfer Notice will constitute an irrevocable offer (for the time periods set forth in items (iii) and (iv) below) to Transfer any of the Offered Securities to the Company, Unger, Koff, Xxxx and the ABRY Members at the Offered Price and on the terms specified in the Transfer Notice (the "Offer to Sell"), except that if the proposed Transfer is to be ------------- wholly or partly for consideration other than cash, then the Offer to Sell will constitute an offer to Transfer the Offered Securities to the Company, Unger, Koff, Xxxx and the ABRY Members for a cash purchase price equal to the amount of cash (if any) specified in the Transfer Notice, plus the fair market value determined in the good faith judgement of the Board, at the date of the Transfer Notice, of such non-cash consideration. (iii) The Company will have 7 business days after its receipt of the Transfer Notice (the "Company Exercise Period") during which to notify the ----------------------- Selling Holder, Unger, Xxxx, Xxxx and the ABRY Members in writing of its election to purchase all of the Offered Securities (an "Acceptance ---------- Notice"). ------ (iv) If the Company has not elected notice to purchase the Offered Securities, securities being offered in the ABRY Members, Xxxxx, Xxxx and Xxxx will have 10 business days after Future Offering on the ABRY Members receipt of the Transfer Notice same terms as contemplated by such Future Offering (the limitations referred to in this sentence and the preceding sentence are collectively referred to as the "Members ------- Exercise PeriodRight of First Refusal") during which (and subject to notify the Selling Holder and the Company --------------- in writing of its election to purchase all of the Offered Securities (which election, if approved by the Board, may state that the Company will purchase a portion of the Offered Securities) (such written notice, also an "Acceptance Notice"). Any Member who delivers an Acceptance Notice ----------------- pursuant to the immediately preceding sentence shall be referred to herein as a "Purchasing Member". If the Purchasing Members elect to purchase in ----------------- the aggregate more than the Offered Securities, then the Offered Securities shall be sold among the Purchasing Members pro rata based upon the number of Class A Units then owned by such Purchasing Members or in such other manner as the Purchasing Members may agree. (v) Upon the delivery of the Acceptance Notice(s.the exceptions described below), the Company and/or the Purchasing Member(s), as the case may be, and the Selling Holder shall be firmly bound to consummate the purchase and sale of the applicable Offered Securities in accordance will not conduct any equity financing (including debt with the Transfer Notice, the Acceptance Notice(san equity component) and the terms hereof. Subject to the provisions hereof, within 35 business days after the Selling Holder's receipt of the last Acceptance Notice, the Company and/or the Purchasing Member(s), as the case may be, shall purchase and the Selling Holder shall sell the applicable Offered Securities at a mutually agreeable time and place (the "Offered Securities ------------------ ClosingFuture Offerings"); provided, that if the applicable Transfer Notice specifies a ------- -------- proposed closing date for such Offered Securities Closing which occurs on any business day ) during the period beginning on the date 35 business days Closing Date and ending twelve (12) months following the Closing Date. In the event the terms and conditions of a proposed Future Offering are amended in any respect after delivery of the applicable Selling Holder has delivered such Transfer Notice notice to Xxxxx, Koff, Boydthe Buyer concerning the proposed Future Offering, the ABRY Members Company shall deliver a new notice to the Buyer describing the amended terms and conditions of the proposed Future Offering and the Company and ending Buyer thereafter shall have an option during the seventy two (72) hour period following delivery of such new notice to purchase its pro rata share of the securities being offered on the date 45 business days after such Selling Holder has delivered such Transfer Notice to Xxxxx, Koff, Boyd, the ABRY Members and the Company, then such Offered Securities Closing shall occur on same terms as contemplated by such proposed closing date. (vi) At the Offered Securities ClosingFuture Offering, the Selling Holder as amended. The foregoing sentence shall deliver apply to successive amendments to the Company and/or terms and conditions of any proposed Future Offering. The Right of First Refusal shall not apply to any transaction involving (i) issuances of securities in a firm commitment underwritten public offering (excluding a continuous offering pursuant to Rule 415 under the Purchasing Member(s1933 Act), as the case may be(ii) issuances to employees, certificates representing the Offered Securities (which Offered Securities shall be free and clear of any liens officers, directors, contractors, consultants or encumbrances) to be purchased other advisors approved by the Company and/or the Purchasing Member(s)Board, as the case may be(iii) issuances to strategic partners or other parties in connection with a commercial relationship, and or providing the Company and/or with equipment leases, real property leases or similar transactions approved by the Purchasing Member(s)Board (iv) issuances of securities as consideration for a merger, as consolidation or purchase of assets, or in connection with any strategic partnership or joint venture (the case may be, shall deliver to the Selling Holder the applicable purchase price for such Offered Securities by wire transfer primary purpose of immediately available funds to an account(s) designated by such Selling Holder. (vii) If the Company, Unger, Koff, Xxxx and the ABRY Members collectively do not elect to purchase all of the Offered Securities in accordance with Section 3(iii) and 3(iv), then the Selling Holder may Transfer all of such Offered Securities, at a price which is not less than to raise equity capital), or in connection with the price specified in disposition or acquisition of a business, product or license by the Transfer Notice and on other terms and conditions which are Company. The Right of First Refusal also shall not materially more favorable in the aggregate to any transferee thereof than those specified in the Transfer Notice, to any Person specified in the applicable Transfer Notice, but only apply to the extent that such Transfer occurs within 90 days after expiration issuance of securities upon exercise or conversion of the Members Exercise Period. Any Securities not Transferred within such 90-day period will be subject Company's options, warrants or other convertible securities outstanding as of the date hereof or to the provisions grant of this Section 3 upon subsequent Transferadditional options or warrants, or the issuance of additional securities, under any Company stock option or restricted stock plan approved by the shareholders of the Company. (viii) The provisions of this Section 3 shall terminate upon the consummation of a Qualified Public Offering.

Right of First. Refusal granted by Offer Subject to certain exceptions to be agreed, the MHC MembersNew Investors will have a right to invest pro rata in post-restructuring equity securities offerings of Reorganized GCL, whether or not for cash. ------------------------------------------------- Conditions to Signing Definitive Documentation Signing of the definitive documentation will be subject to (i) negotiation of definitive documentation acceptable to GCL and the New Investors, (ii) compliance by GCL and the New Investors with all the pre-closing covenants and conditions set forth herein (as if all such covenants and conditions were binding on GCL), (iii) the terms of the GCL Restructuring to be supported by the agents for the banks and the statutory creditors committee by no later than the Auction date (as referenced in Schedule 2); (iv) availability of debtor-in-possession financing for GCL of no less than US$150 million on terms satisfactory to New Investors (the "DIP Financing"); (v) satisfaction of the New Investors with respect to the status of AGC and the status of any AGC restructuring; and (vi) the completion of due diligence satisfactory to the New Investors. Documentation Documentation to be entered into between GCL and the New Investors will include a Purchase Agreement containing representations, warranties, covenants and closing conditions acceptable to the parties. Attached as exhibits to the Purchase Agreement will be an agreed upon form of the following documents: (i) new Bye-laws, (ii) a Registration Rights Agreement and (iii) a certificate of designations relating to the Senior Convertible Preferred Stock. The definitive documentation shall provide that all decisions, approvals or designations of a party hereto may be made (or withheld) in the sole and absolute discretion of such party, except to the extent that another standard expressly governs. Back-End Date If at the Closing Date does not occur by September 30, 2002, the New Investors and GCL shall each have the discretion to terminate the transaction provided that if, on such date, the only unsatisfied condition to closing is obtaining a requisite regulatory approval, such date shall be extended to December 31, 2002. Expenses GCL shall reimburse the New Investors for all their actual, reasonable, documented out-of-pocket costs and expenses (including, without limitation, the fees and expenses of counsel, advisors and accountants) incurred in connection with the transaction contemplated hereby (i) up to an aggregate maximum amount of US$3.8 million immediately upon the execution of the letter of intent relating to this Term Sheet and (ii) until termination of the contemplated transaction, those additional reasonable, actual, documented, out of pocket costs and expenses (excluding any time success fees) payable as follows: GCL shall pay the monthly retainer payments of Goldman Sachs & Co. and Merrill Lynch (Singapore) Pte. Xxx. in the amoxxxx xx XX$000,000 and US$150,000, respectively. In addition, each month, the attorneys and accountants of the New Investors shall submit fee statements to GCL, counsel for the agents for the banks, The Office of the United States Trustee and counsel to any MHC Member statutory creditors committee. If GCL receives no objection within 10 business days of receipt of such fee statement, GCL shall pay the invoiced fees and expenses. If an objection is so received, GCL shall only pay the undisputed amount pending court resolution of such dispute. The total costs and expenses payable pursuant to such clause (ii) shall not exceed US$10 million in the aggregate. In addition, it is contemplated that as part of the GCL Restructuring success fees would be payable by Reorganized GCL to advisors of HWL and STT on the Closing Date. Buyer Protection Order By the relevant date specified in Schedule 2, GCL shall file a motion in all applicable courts (including Bermuda if necessary) seeking an order (the "Selling HolderBuyer Protection Order") proposes that will establish hearings and deadlines consistent with the Restructuring Timetable and approve (i) the expense reimbursement specified in clause (ii) under "Expenses" above, (ii) a break-up fee to -------------- Transfer the New Investors in an aggregate amount equal to US$40 million in the event that GCL accepts or approves, or a court approves or orders, any Securities proposal (any such proposal, an "Alternative Transaction") that provides for one or more third parties (A) to acquire in one or a series of related transactions all or substantially all of the assets of GCL or (B) to make a comparable investment in GCL or sponsor or be an economic co-proponent of a plan of reorganization of GCL and (iii) the other binding provisions of this Term Sheet. The break-up fee will be payable when the Alternative Transaction closes provided that if an Alternative Transaction is approved by the court but ultimately does not close, the New Investors shall be entitled to a break-up fee in an aggregate amount equal to US$20 million, payable on the effective date of GCL's plan of reorganization. No break-up fee will be owed if either of the New Investors terminates the transaction for any reason (other than as a result of (i) an Alternative Transaction, (ii) GCL willfully fails to comply with the conditions to Closing for the purposes of delaying or precluding the closing of the transaction or (iii) such termination results from a failure to adhere to the Restructuring Timetable that is not attributable to the New Investors and an Alternative Transaction is approved by the court within 90 days of such missed deadline). A break-up fee payable under the circumstances described in clause (iii) immediately above shall only be payable out of the proceeds payable at closing of such Alternative Transaction. Confidentiality Until the date on which GCL files a motion seeking approval of the Buyer Protection Order, GCL and the New Investors agree to keep this Term Sheet confidential pursuant to a Public Sale, pursuant to an Approved Company Sale, or if such Selling Holder is exercising a participation right granted to such Selling Holder pursuant to Section 1(b) or 1(c)), then such Selling Holder will, not fewer than 10 business days prior to making such Transfer, give notice (the "Transfer Notice") their previous confidentiality undertakings with respect to the --------------- ABRY Memberspotential transaction, Ungerprovided that GCL may disclose this Term Sheet to its bank lenders, Koffits bond/note holders and any statutory creditors committee, Xxxx and their respective advisors, provided such parties have agreed to keep this Term Sheet confidential, provided that GCL concurrently with such disclosure informs the New Investors of the identity of the person to whom this Term Sheet is being disclosed. Notwithstanding the foregoing, the New Investors and GCL may each issue a press release relating to this Term Sheet disclosing (i) the names of the New Investors and GCL, (ii) the aggregate US$750 million cash investment by the New Investors and (iii) such other items as may be mutually agreed by the parties. New Investors Designations and Determinations HWL and STT may designate other entities as New Investors provided that, notwithstanding such designation (i) HWL and STT acting directly or through one or more affiliates shall each invest an amount that exceeds the amount invested by any other New Investors and (ii) no entity shall be designated that adversely effects the timing of the Closing of the transaction or the ability to obtain regulatory approval for the consummation of the Closing. Notwithstanding anything to the Company specifying contrary contained herein, (xi) in each case where this Term Sheet or the Securities proposed definitive documents contemplated hereby provides for the New Investors to provide a decision or their approval, consent, waiver or judgment, such decision, approval, consent, waiver or judgment shall be Transferred solely provided by HWL and STT (the "Offered Securities"and shall specifically exclude any of their permitted designees), (yii) the ------------------ price (parties further acknowledge that HWL and STT shall negotiate and approve all definitive agreements contemplated hereby without the "Offered Price") participation of any additional investor and the other terms and conditions upon which ------------- such Selling Holder proposes to Transfer such Offered Securities, and (z) with specificity, the proposed transferee(s). After the delivery of a Transfer Notice, the Selling Holder shall in a timely manner provide any ABRY Member with any written information regarding the proposed Transfer as reasonably requested by such ABRY Member. (ii) The Transfer Notice will constitute an irrevocable offer (for the time periods set forth in items (iii) and (iv) below) if HWL or STT designates any other entity to Transfer any of the Offered Securities to the Company, Unger, Koff, Xxxx and the ABRY Members at the Offered Price and on the terms specified participate in the Transfer Notice (the "Offer to Sell"), except that if the proposed Transfer is to be ------------- wholly or partly for consideration other than cash, then the Offer to Sell will constitute an offer to Transfer the Offered Securities to the Company, Unger, Koff, Xxxx and the ABRY Members for a cash purchase price equal to the amount of cash (if any) specified in the Transfer Notice, plus the fair market value determined in the good faith judgement of the Board, at the date of the Transfer Notice, of such non-cash consideration. (iii) The Company will have 7 business days after its receipt of the Transfer Notice (the "Company Exercise Period") during which to notify the ----------------------- Selling Holder, Unger, Xxxx, Xxxx and the ABRY Members in writing of its election to purchase all of the Offered Securities (an "Acceptance ---------- Notice"). ------ (iv) If the Company has not elected to purchase the Offered Securities, the ABRY Members, Xxxxx, Xxxx and Xxxx will have 10 business days after the ABRY Members receipt of the Transfer Notice (the "Members ------- Exercise Period") during which to notify the Selling Holder and the Company --------------- in writing of its election to purchase all of the Offered Securities (which election, if approved by the Board, may state that the Company will purchase a portion of the Offered Securities) (such written notice, also an "Acceptance Notice"). Any Member who delivers an Acceptance Notice ----------------- pursuant to the immediately preceding sentence shall be referred to herein as a "Purchasing Member". If the Purchasing Members elect to purchase in ----------------- the aggregate more than the Offered Securities, then the Offered Securities shall be sold among the Purchasing Members pro rata based upon the number of Class A Units then owned by such Purchasing Members or in such other manner as the Purchasing Members may agree. (v) Upon the delivery of the Acceptance Notice(s), the Company and/or the Purchasing Member(s), as the case may be, and the Selling Holder shall be firmly bound to consummate the purchase and sale of the applicable Offered Securities transaction in accordance with the Transfer Notice, the Acceptance Notice(s) and the terms hereof. Subject , either (A) such entity shall be financially capable of performing its obligations to GCL under the provisions hereof, within 35 business days after the Selling Holder's receipt definitive documents (including its obligations to fund its portion of the last Acceptance NoticeInvestment Amount on the Closing Date), the Company and/or the Purchasing Member(s)as reasonably determined by GCL, or (B) HWL or STT, as the case may be, shall purchase and the Selling Holder shall sell the applicable Offered Securities at a mutually agreeable time and place (the "Offered Securities ------------------ Closing"); provided, that if the applicable Transfer Notice specifies a ------- -------- proposed closing date for remain obligated to perform any such Offered Securities Closing which occurs on any business day during the period beginning on the date 35 business days after the applicable Selling Holder has delivered obligations not performed by such Transfer Notice to Xxxxx, Koff, Boyd, the ABRY Members and the Company and ending on the date 45 business days after such Selling Holder has delivered such Transfer Notice to Xxxxx, Koff, Boyd, the ABRY Members and the Company, then such Offered Securities Closing shall occur on such proposed closing date. (vi) At the Offered Securities Closing, the Selling Holder shall deliver to the Company and/or the Purchasing Member(s), as the case may be, certificates representing the Offered Securities (which Offered Securities designee. Governing Law This Term Sheet shall be free governed by and clear of any liens or encumbrances) to be purchased by the Company and/or the Purchasing Member(s), as the case may be, and the Company and/or the Purchasing Member(s), as the case may be, shall deliver to the Selling Holder the applicable purchase price for such Offered Securities by wire transfer of immediately available funds to an account(s) designated by such Selling Holder. (vii) If the Company, Unger, Koff, Xxxx and the ABRY Members collectively do not elect to purchase all of the Offered Securities construed in accordance with Section 3(iii) the laws of the State of New York. Non-binding Term Sheet This Term Sheet except for the provisions relating to Expenses, Buyer Protection Order, Confidentiality and 3(ivGoverning Law above (which provisions are intended and agreed to be fully binding), then the Selling Holder may Transfer all is intended as an indication of such Offered Securities, at a price which interest for discussion purposes only and is not less than the price specified intended to be and does not constitute a legally binding obligation of any party hereto. No person or entity shall rely upon anything in the Transfer Notice this Term Sheet and on other terms and conditions which are not materially more favorable in the aggregate to no person or entity shall have any transferee thereof than those specified in the Transfer Noticeright, to benefit or remedy of any Person specified in the applicable Transfer Notice, but only to the extent that such Transfer occurs within 90 days after expiration of the Members Exercise Period. Any Securities not Transferred within such 90-day period will be subject to the provisions nature by reason of this Section 3 upon subsequent Transfer. Term Sheet. Schedule 1 ---------- Performance Targets ------------------- (viiiUS$ millions) The provisions of this Section 3 shall terminate upon the consummation of a Qualified Public Offering.For Quarters ended 2002 Q1 Q2 Q3 9 months -- -- -- -------- Minimum Service Revenue $722 $677 $658 Service EBITDA (105) (68) (49) Cumulative IRU's $65 Q1 Q2 Q3 9 months -- -- -- -------- Maximum $242(1) Cumulative Cash CapEx

Right of First. Refusal granted by the MHC Members. ----------------------------------------------------------------------- (ia) If at any time any MHC Member (a "Selling Holder") proposes to -------------- Transfer any Securities (of the Stockholders, other than pursuant Xxxxxxx, individually or as a group, propose to sell such number of Shares as shall represent 20% or more of the outstanding Common Stock on a Public Sale, pursuant to an Approved Company Sale, or if such Selling Holder is exercising a participation right granted to such Selling Holder pursuant to Section 1(b) or 1(c)), then such Selling Holder will, not fewer than 10 business days prior to making such Transfer, give notice (the "Transfer Notice") to the --------------- ABRY Members, Unger, Koff, Xxxx and to the Company specifying (x) the Securities proposed to be Transferred fully diluted basis (the "Offered SecuritiesShares") to any Person other than an Affiliate of such Stockholder -------------- (or group of Stockholders) in any one transaction or series of related transaction not permitted by paragraphs (i), (ii) and (iii) of Section 4(b) (each, a "Disposition"), then the Stockholder (yor group of Stockholders) shall, ----------- prior to agreeing to such Disposition, provide Xxxxxxx with written notice (a "Disposition Notice") of his or its intention to make the ------------------ Disposition and ------------------- describing the terms and conditions of the Disposition in reasonable detail, including the proposed price per Share, the method of payment and the identity of the proposed purchaser. (b) Xxxxxxx shall have the exclusive right during the period commencing on his receipt of the Disposition Notice and expiring twenty (20) days thereafter (the "Offered Price") and the other terms and conditions upon which ------------- such Selling Holder proposes to Transfer such Offered Securities, and (z) with specificity, the proposed transferee(s). After the delivery of a Transfer Notice, the Selling Holder shall in a timely manner provide any ABRY Member with any written information regarding the proposed Transfer as reasonably requested by such ABRY Member. (ii) The Transfer Notice will constitute an irrevocable offer (for the time periods set forth in items (iii) and (iv) below) to Transfer any of the Offered Securities to the Company, Unger, Koff, Xxxx and the ABRY Members at the Offered Price and on the terms specified in the Transfer Notice (the "Offer to Sell"), except that if the proposed Transfer is to be ------------- wholly or partly for consideration other than cash, then the Offer to Sell will constitute an offer to Transfer the Offered Securities to the Company, Unger, Koff, Xxxx and the ABRY Members for a cash purchase price equal to the amount of cash (if any) specified in the Transfer Notice, plus the fair market value determined in the good faith judgement of the Board, at the date of the Transfer Notice, of such non-cash consideration. (iii) The Company will have 7 business days after its receipt of the Transfer Notice (the "Company Exercise Exclusive Period") during which to notify the ----------------------- Selling Holder, Unger, Xxxx, Xxxx and the ABRY Members in writing of its election to purchase all of the Offered Securities (an "Acceptance ---------- Notice"). ------ (iv) If the Company has not elected elect to purchase the Offered Securities, Shares ---------------- at the ABRY Members, Xxxxx, Xxxx same price and Xxxx will have 10 business days after subject to the ABRY Members receipt same material terms and conditions as described in the Disposition Notice. Xxxxxxx may elect to purchase the Offered Shares by notifying the Stockholder (or group of the Transfer Notice (the "Members ------- Exercise Period"Stockholders) during which to notify the Selling Holder and the Company --------------- in writing before expiration of its such twenty (20) day period. (c) If Xxxxxxx gives notice of his election to purchase all of the Offered Securities (which election, if approved by the Board, may state that the Company will purchase a portion of the Offered Securities) (such written notice, also an "Acceptance Notice"). Any Member who delivers an Acceptance Notice ----------------- pursuant to the immediately preceding sentence shall be referred to herein as a "Purchasing Member". If the Purchasing Members elect to purchase in ----------------- the aggregate more than the Offered SecuritiesShares, then the Offered Securities closing for such Disposition shall be sold among held at the Purchasing Members pro rata based upon the number offices of Class A Units then owned by NCI within twenty (20) days after such Purchasing Members notice or in on such other manner date as is specified in the Purchasing Members may agree. (v) Upon Disposition Notice. At the delivery of closing, Xxxxxxx shall pay for the Acceptance Notice(s), the Company and/or the Purchasing Member(s), as the case may be, and the Selling Holder shall be firmly bound to consummate the purchase and sale of the applicable Offered Securities Shares in accordance with the Transfer terms contained in the Disposition Notice, the Acceptance Notice(s) and the terms hereof. Subject to the provisions hereof, within 35 business days after the Selling Holder's receipt Stockholder (or group of the last Acceptance Notice, the Company and/or the Purchasing Member(s), as the case may be, shall purchase and the Selling Holder shall sell the applicable Offered Securities at a mutually agreeable time and place (the "Offered Securities ------------------ Closing"); provided, that if the applicable Transfer Notice specifies a ------- -------- proposed closing date for such Offered Securities Closing which occurs on any business day during the period beginning on the date 35 business days after the applicable Selling Holder has delivered such Transfer Notice to Xxxxx, Koff, Boyd, the ABRY Members and the Company and ending on the date 45 business days after such Selling Holder has delivered such Transfer Notice to Xxxxx, Koff, Boyd, the ABRY Members and the Company, then such Offered Securities Closing shall occur on such proposed closing date. (viStockholders) At the Offered Securities Closing, the Selling Holder shall deliver to the Company and/or the Purchasing Member(s), as the case may be, certificates representing the Offered Securities (which Offered Securities shall be Shares free and clear of any liens or encumbrances) to be purchased by the Company and/or the Purchasing Member(s)all liens, as the case may be, charges and the Company and/or the Purchasing Member(s), as the case may be, shall deliver to the Selling Holder the applicable purchase price encumbrances and properly endorsed for such Offered Securities by wire transfer of immediately available funds to an account(s) designated by such Selling Holdertransfer. (viid) If Xxxxxxx fails to notify the Company, Unger, Koff, Xxxx and Stockholder (or group of Stockholders) during the ABRY Members collectively do not elect to purchase all of the Offered Securities in accordance with Section 3(iii) and 3(iv)Exclusive Period, then the Selling Holder may Transfer all Xxxxxxx shall be deemed to have waived his Right of such Offered Securities, at a price which is not less than the price specified in the Transfer Notice and on other terms and conditions which are not materially more favorable in the aggregate to any transferee thereof than those specified in the Transfer Notice, to any Person specified in the applicable Transfer Notice, but only to the extent that such Transfer occurs within 90 days after expiration of the Members Exercise Period. Any Securities not Transferred within such 90-day period will be subject to the provisions of this Section 3 upon subsequent TransferFirst Refusal. (viii) The provisions of this Section 3 shall terminate upon the consummation of a Qualified Public Offering.