Common use of Right To Participate In Transfer Clause in Contracts

Right To Participate In Transfer. Neither Shell nor Sierra Acquisition nor any Affiliate (excluding Holdings and its Subsidiaries) of either shall transfer to a Person that is not an Affiliate of Shell or Sierra Acquisition (a "THIRD PARTY") a number of shares of Common Stock equal to or exceeding 50% of the Fully Diluted Common Stock in a single transaction or in a series of related transactions (a "TAG-ALONG SALE"), unless Shell has exercised the drag along option pursuant to Section 4.02 or unless such Third Party shall have offered ("TAG-ALONG OFFER") to each Holder of SARs, (a "TAGGING PERSON") to acquire concurrently with the acquisition of Shell's, Sierra Acquisition's or such Affiliate's Common Stock, on the same terms and conditions (less the SAR Strike Price applicable thereto) of the proposed transfer, a number of units of SARs held by such Tagging Person equal to the total number of units of all of such Tagging Person's SARs multiplied by a fraction, the numerator of which is the number of shares of Common Stock proposed to be sold by Shell, Sierra Acquisition or such Affiliate pursuant to this Section 4.01 and the denominator of which is the aggregate number of shares of Common Stock held by Shell, Sierra Acquisition, and such Affiliates (the "PRO RATA PORTION"). In the event of such a proposed transfer, the Third Party shall provide each Tagging Person with a written notice of the terms and conditions of the proposed transfer ("TAG-ALONG NOTICE"). The Tag-Along Notice shall identify the Tagging Person's Pro Rata Portion of each such security subject to the Tag-Along Offer, the proposed consideration and all other material terms and conditions of the Tag-Along Offer. Each Tagging Person shall have the right (a "TAG-ALONG RIGHT"), exercisable by written notice given to the Third Party within 20 business days after receipt of the Tag-Along Notice to the address set forth in the Tag-Along Notice (a "TAG-ALONG ACCEPTANCE NOTICE"), to request the Third Party to include in the proposed transfer all or any portion of the Pro Rata Portion of such Tagging Person; PROVIDED that if any Tagging Person does not exercise its Tag-Along Right or exercises its Tag-Along Right only as to a part of its Pro Rata Portion, Shell, Sierra Acquisition or such Affiliate shall have the right to sell in the Tag-Along Sale an additional amount of Common Stock to the Third Party up to the number of units of SARs which could have been sold by such Persons pursuant to the Tag-Along Right without again complying with this Section 4.01.

Right To Participate In Transfer. Neither Shell nor Sierra Acquisition nor any Affiliate To the extent the Company and the Investors and Founders decline to exercise their right of first refusal (excluding Holdings and its Subsidiaries) of either set forth in Section 2.2 hereof), the Transferring Stockholder shall transfer to send a Person that is not an Affiliate of Shell or Sierra Acquisition written notice (a "THIRD PARTYthe " Second Notice") a number to all Investors as to their rights under this Section 2.3 within sixty (60) days of shares of Common Stock equal to or exceeding 50% of sending the Fully Diluted Common Stock in a single transaction or in a series of related transactions (a "TAG-ALONG SALE"), unless Shell has exercised the drag along option TS Notice pursuant to Section 4.02 or unless such Third Party 2.2. Upon receipt of the Second Notice, each Investor shall have offered the right ("TAG-ALONG OFFER"by written notice to the Transferring Stockholder and the Company to be sent within twenty (20) days after the Investor receives the Second Notice) to each Holder of SARs, (a "TAGGING PERSON") require the Transferring Stockholder to acquire concurrently with the acquisition of Shell's, Sierra Acquisition's or cause to be purchased from such Affiliate's Common Stock, on the same terms and conditions (less the SAR Strike Price applicable thereto) of the proposed transfer, a number of units of SARs held by such Tagging Person equal to the total number of units of all of such Tagging Person's SARs multiplied by a fraction, the numerator of which is Investor the number of shares of Common Stock proposed issued or issuable upon conversion of shares of Series A Preferred Stock or Series B Preferred Stock, as applicable, then held by such Investor that equals (x) the number of Sale Shares that the Transferring Stockholder proposes to be sold transfer, multiplied by Shell, Sierra Acquisition or such Affiliate pursuant to this Section 4.01 and (y) the denominator of which is percentage determined by dividing (i) the aggregate number of shares of Common Stock held by Shellissued and held, Sierra Acquisition, and such Affiliates (the "PRO RATA PORTION"). In the event of such a proposed transfer, the Third Party shall provide each Tagging Person with a written notice or issuable upon conversion of the terms Preferred Stock then held, by the Investor by (ii) the number of shares of Common Stock issued and conditions held, or issuable upon conversion of the proposed transfer ("TAG-ALONG NOTICE"). The Tag-Along Notice shall identify the Tagging Person's Pro Rata Portion of each such security subject to the Tag-Along OfferPreferred Stock then held, the proposed consideration and by all other material terms and conditions of the Tag-Along OfferInvestors plus the number of shares of Common Stock issued and held, or issuable upon conversion of the Preferred Stock then held, by the Transferring Stockholder. Each Tagging Person Any such purchase shall have take place concurrently with the right closing of the applicable Shares Transfer and in any event within ninety (a "TAG-ALONG RIGHT"), exercisable by written notice given to the Third Party within 20 business 90) days after receipt of the Tag-Along Notice TS Notice. The foregoing restriction shall not apply to a transfer or series of transfers by an employee or employees of the address set forth Company which transfer or series of transfers results in the Tag-Along Notice transfer of less than five percent (a "TAG-ALONG ACCEPTANCE NOTICE"), to request the Third Party to include in the proposed transfer all or any portion 5%) of the Pro Rata Portion Shares outstanding on a fully diluted basis (including, for purpose of such Tagging Person; PROVIDED that if calculation, all Shares issuable upon exercise of outstanding options as being issued for any Tagging Person does not exercise its Tag-Along Right or exercises its Tag-Along Right only as to a part of its Pro Rata Portion, Shell, Sierra Acquisition or such Affiliate shall have the right to sell in the Tag-Along Sale an additional amount of Common Stock to the Third Party up to the number of units of SARs which could have been sold by such Persons pursuant to the Tag-Along Right without again complying with this Section 4.01employee and for outstanding Shares generally).

Right To Participate In Transfer. Neither Shell nor Sierra Acquisition nor (Tag-Along Rights). (a) If any Affiliate Shareholder (excluding Holdings the "SELLING PERSON") proposes to transfer (other than transfers (i) of shares of Common Stock or Warrants in a Public Offering, (ii) to Permitted Transferees of the Selling Person or (iii) where prior to or after giving effect to such transfer or transfers, the Selling Person and its Subsidiaries) Permitted Transferees continue to have beneficial ownership of either shall transfer at least 75% of the number of the securities of the type proposed to be transferred that were beneficially owned by such Selling Person as of August 3, 1998 (or such later date as such Shareholder first became a Person that is not an Affiliate of Shell party to or Sierra Acquisition (bound by this Agreement)), in a "THIRD PARTY") transaction otherwise permitted by Section 3.4 hereof, a number of shares of Common Stock or Preferred Stock equal to or exceeding 5010% of the number of such outstanding securities on a Fully Diluted basis, or Warrants, together with any Common Stock proposed to be transferred, exercisable for 10% of the Common Stock on a Fully Diluted basis, in a single transaction or in a series of related transactions (a "TAG-ALONG SALE"), unless Shell has exercised the drag along option pursuant other Shareholders may, at their option, elect to exercise their rights under this Section 4.02 or unless 4.2 (each such Third Party shall have offered ("TAG-ALONG OFFER") to each Holder of SARsShareholder, (a "TAGGING PERSON"); provided, however, with respect to any such transfer also governed by Section 4.1 hereof, the Shareholders holding Common Stock and Warrants (and the Company) shall have first been afforded the opportunity to acquire concurrently any Common Stock or Warrants sold in a Tag-Along Sale in accordance with the acquisition provisions of Shell's, Sierra Acquisition's or such Affiliate's Section 4.1. Any sale by a Shareholder of Common Stock, on Warrants or Preferred Stock, as the case may be, that occurs within six months of any other sale by such Shareholder of the same terms and conditions (less the SAR Strike Price applicable thereto) of the proposed transfer, a number of units of SARs held by such Tagging Person equal to the total number of units of all of such Tagging Person's SARs multiplied by a fraction, the numerator of which is the number of shares of Common Stock proposed securities shall be conclusively deemed to be sold by Shell, Sierra Acquisition or related to such Affiliate pursuant to this Section 4.01 and the denominator of which is the aggregate number of shares of Common Stock held by Shell, Sierra Acquisition, and such Affiliates (the "PRO RATA PORTION")previous transaction. In the event of such a proposed transfer, the Third Party Selling Person shall (after the conclusion of the relevant periods referred to in Section 4.1(d), if applicable) provide each Tagging Person with a other Shareholder written notice of the terms and conditions of the such proposed transfer ("TAG-ALONG NOTICE"). The Tag-Along Notice shall identify the Tagging Person's Pro Rata Portion number and type of each such security securities subject to the Tagoffer ("TAG-Along OfferALONG OFFER"), the cash price at which the transfer is proposed consideration to Second Amended and Restated Investors' Agreement 19 23 be made, and all other material terms and conditions of the Tag-Along Offer. Each Tagging Person shall have the right (a "TAG-ALONG RIGHT"), exercisable by written notice ("SECTION 4.2 RESPONSE NOTICE") given to the Third Party Selling Person and the Company within 20 business 25 days (or, in the case of a transfer of shares of Preferred Stock, 14 days) after receipt of the Tag-Along Notice (the "TAG-ALONG NOTICE PERIOD"), to require the address Selling Person to include in the proposed transfer the number of securities held by such Tagging Person as is specified in such notice; provided that if the aggregate number and kind of securities proposed to be sold by all Tagging Persons in such transaction exceeds the number and kind of securities which can be sold on the terms and conditions set forth in the Tag-Along Notice (a "TAG-ALONG ACCEPTANCE NOTICE")Notice, to request the Third Party to include in the proposed transfer all or any portion of the Pro Rata Portion of such Tagging Person; PROVIDED that if any Tagging Person does not exercise its Tag-Along Right or exercises its Tag-Along Right then only as to a part of its Pro Rata Portion, Shell, Sierra Acquisition or such Affiliate shall have the right to sell in the Tag-Along Sale an additional amount Portion of Common Stock to the Third Party up to the number of units of SARs which could have been each Tagging Person shall be sold by such Persons pursuant to the Tag-Along Right without again complying Offer. If the Tagging Persons exercise their Tag-Along Rights hereunder, each Tagging Person shall deliver to the Selling Person the certificate or certificates representing the securities of such Tagging Person to be included in the transfer, together with a limited power-of-attorney authorizing the Selling Person to transfer such securities on the terms set forth in the Tag-Along Notice. Delivery of such certificate or certificates representing the securities to be transferred and the limited power-of-attorney authorizing the Selling Person to transfer such securities shall constitute an irrevocable acceptance of the Tag-Along Offer by such Tagging Persons. If, at the end of a 120-day period after such delivery, the Selling Person has not completed the transfer of all such securities on substantially the same terms and conditions set forth in the Tag-Along Notice, (A) the Selling Person shall return to each Tagging Person the limited power-of-attorney (and all copies thereof) together with all certificates representing the Shares which such Tagging Person delivered for transfer pursuant to this Section 4.014.2 and such Tagging Person shall not thereafter have the right to require the Selling Person to include any Securities in such proposed transfer, and (B) any transfer to be completed after the end of such 120-day period shall be subject to the rights of the Shareholders under this Section 4.2.

Right To Participate In Transfer. Neither Shell nor Sierra Acquisition nor (Tag-Along Rights). (a) If any Affiliate Shareholder (excluding Holdings the "SELLING PERSON") proposes to transfer (other than transfers (i) of shares of Common Stock or Warrants in a Public Offering, or pursuant to Rule 144 under the Securities Act, (ii) to Permitted Transferees of the Selling Person or (iii) where prior to or after giving effect to such transfer or transfers, the Selling Person and its Subsidiaries) Permitted Transferees do not own less than 75% of either shall transfer the number of the securities of the type proposed to be transferred that were beneficially owned by such Selling Person on October 5, 1995 with respect to all Shareholders other than the Windx Xxxx Xxxestors or on the date hereof with respect to the Windx Xxxx Xxxestors), in a Person that is not an Affiliate of Shell or Sierra Acquisition (a "THIRD PARTY") transaction otherwise permitted by Section 3.4 hereof, a number of shares of Common Stock or Preferred Stock equal to or exceeding 5010% of the number of such securities on a Fully Diluted basis, or Warrants exercisable for 10% of the Common Stock on a fully Diluted basis, in a single transaction or in a series of related transactions (a "TAG-ALONG SALE"), unless Shell has exercised the drag along option pursuant other Shareholders may, at their option, elect to exercise their rights under this Section 4.02 or unless 4.2 (each such Third Party shall have offered ("TAG-ALONG OFFER") to each Holder of SARsShareholder, (a "TAGGING PERSON"); provided, however, with respect to any such transfer also governed by Section 4.1 hereof, the Shareholders holding Common Stock and Warrants (and the Company) shall have first been afforded the opportunity to acquire concurrently any Common Stock or Warrants sold in a Tag-Along Sale in accordance with the acquisition provisions of Shell's, Sierra Acquisition's or such Affiliate's Section 4.1. Any sale by a Shareholder of Common Stock, on Warrants or Preferred Stock, as the case may be, that occurs within six months of any other sale by such Shareholder of the same terms and conditions (less the SAR Strike Price applicable thereto) of the proposed transfer, a number of units of SARs held by such Tagging Person equal to the total number of units of all of such Tagging Person's SARs multiplied by a fraction, the numerator of which is the number of shares of Common Stock proposed securities shall be conclusively deemed to be sold by Shell, Sierra Acquisition or related to such Affiliate pursuant to this Section 4.01 and the denominator of which is the aggregate number of shares of Common Stock held by Shell, Sierra Acquisition, and such Affiliates (the "PRO RATA PORTION")previous transaction. In the event of such a proposed transfer, the Third Party Selling Person shall (after the conclusion of the relevant periods referred to in Section 4.1(d), if applicable) provide each Tagging Person with a other Shareholder written notice of the terms and conditions of the such proposed transfer ("TAG-ALONG NOTICE"). The Tag-Along Notice shall identify the Tagging Person's Pro Rata Portion number and type of each such security securities subject to the Tagoffer ("TAG-Along OfferALONG OFFER"), the cash price at which the transfer is proposed consideration to be made, and all other material terms and conditions of the Tag-Along Offer. Each Tagging Person shall have the right (a "TAG-ALONG RIGHT"), exercisable by written notice ("SECTION 4.2 RESPONSE NOTICE") given to the Third Party Selling Person within 20 business 25 days (or, in the case of a transfer of shares of Preferred Stock, 14 days) after receipt of the Tag-Along Notice (the "TAG-ALONG NOTICE PERIOD"), to require the address Selling Person to include in the proposed transfer the number of securities held by such Tagging Person as is specified in such notice; provided that if the aggregate number and kind of securities proposed to be sold by all Tagging Persons in such transaction exceeds the number and kind of securities which can be sold on the terms and conditions set forth in the Tag-Along Notice (a "TAG-ALONG ACCEPTANCE NOTICE")Notice, to request the Third Party to include in the proposed transfer all or any portion of the Pro Rata Portion of such Tagging Person; PROVIDED that if any Tagging Person does not exercise its Tag-Along Right or exercises its Tag-Along Right then only as to a part of its Pro Rata Portion, Shell, Sierra Acquisition or such Affiliate shall have the right to sell in the Tag-Along Sale an additional amount Portion of Common Stock to the Third Party up to the number of units of SARs which could have been sold by such Persons pursuant to the Tag-Along Right without again complying with this Section 4.01.each Tagging