Common use of Tagalong Clause in Contracts

Tagalong. Except as provided in Section 2.2 or 2.3 hereof, no Stockholder shall Transfer (in one or a series of transactions within any 24-month period) any Subject Securities representing more than ten percent (10%) of the Common Stock Equivalents held by such Stockholder on the date of execution of this Agreement by such stockholder, to a Third Party without complying with the terms and conditions set forth in this Section 2.4, as applicable; provided that this Section 2.4 shall not in any way limit or affect the restrictions of Section 2.1, and any Stockholder may be an Initiating Stockholder (as defined below) under this Section 2.4 only if such Transfer is permitted under Section 2.1: (a) Any Stockholder (the "Initiating Stockholder") desiring to Transfer such Subject Securities shall give not less than 10 days' prior written notice of such intended Transfer to each other Stockholder ("Participating Offerees") and to the Company. Such notice (the "Participation Notice") shall set forth the terms and conditions of such proposed Transfer, including the name of the prospective transferee, the number of Common Stock Equivalents proposed to be transferred (the "Participation Securities") by the Initiating Stockholder, the purchase price per share proposed to be paid therefor and the payment terms and type of Transfer to be effectuated. Within 15 days following the delivery of the Participation Notice by the Initiating Stockholder to each Participating Offeree and to the Company, each Participating Offeree shall, by notice in writing to the Initiating Stockholder and to the Company, have the opportunity and right to sell to the purchasers in such proposed Transfer (upon the same terms and conditions as the Initiating Stockholder) up to that number of Subject Securities representing Common Stock Equivalents at the time held by such Participating Offeree as shall equal the product of (i) a fraction, the numerator of which is the number of Common Stock Equivalents owned by such Participating Offeree as of the date of such proposed Transfer and the denominator of which is the aggregate number of Common Stock Equivalents owned as of the date of such Participation Notice by each Initiating Stockholder and by all Participating Offerees so electing to sell Subject Securities pursuant to this Section 2.4(a), multiplied by (ii) the number of Participation Securities. The amount of Participation Securities to be sold by any Initiating Stockholder shall be reduced to the extent necessary to provide for such sales of Subject Securities by Participating Offerees. (b) At the closing of any proposed Transfer in respect of which a Participation Notice has been delivered, the Initiating Stockholder, together with all Participating Offerees so electing to sell Subject Securities pursuant to this Section 2.4(a) shall deliver to the proposed transferee certificates and/or other instruments representing the Subject Securities to be sold, free and clear of all liens and encumbrances, together with stock or other appropriate powers duly endorsed therefor, and shall receive in exchange therefor the consideration to be paid or delivered by the proposed transferee in respect of such Subject Securities as described in the Participation Notice. (c) The provisions of this Section 2.4 shall not apply to (i) any Transfer pursuant to a Public Offering, (ii) following a Public Offering, pursuant to a Rule 144 Transaction or (iii) any Transfers pursuant to Section 2.5 hereof. 2.5

Tagalong. Except as provided (a) If Pengo or any affiliate of Pengo (a "Transferor") sells, other than in Section 2.2 an offering pursuant to a registration statement or 2.3 hereofpursuant to Rule 144 under the Securities Act of 1933, no Stockholder shall Transfer any shares of Common Stock owned by the Transferor to any individual or entity (a "Transferee") in one transaction or a series of related transactions within any 24-month period) any Subject Securities representing more than ten percent (10%) which constitute a majority of the Common Stock Equivalents held by such Stockholder on the date of execution of this Agreement by such stockholder, to a Third Party without complying with the terms and conditions set forth in this Section 2.4, as applicable; provided that this Section 2.4 shall not in any way limit or affect the restrictions of Section 2.1, and any Stockholder may be an Initiating Stockholder (as defined below) under this Section 2.4 only if such Transfer is permitted under Section 2.1: (a) Any Stockholder (the "Initiating Stockholder") desiring to Transfer such Subject Securities shall give not less than 10 days' prior written notice of such intended Transfer to each other Stockholder ("Participating Offerees") and to the Company. Such notice (the "Participation Notice") shall set forth the terms and conditions of such proposed Transfer, including the name of the prospective transferee, the number shares of Common Stock Equivalents proposed to be transferred owned by Pengo and its affiliates (collectively, the "Participation SecuritiesSmitx Xxxup") by the Initiating Stockholder), the purchase price per share proposed to be paid therefor and the payment terms and type of Transfer to be effectuated. Within 15 days following the delivery of the Participation Notice by the Initiating Stockholder to each Participating Offeree and to the Company, each Participating Offeree shall, by notice in writing to the Initiating Stockholder and to the Company, Purchaser shall have the opportunity and right to sell to the purchasers in such proposed Transfer (upon Transferee, on the same terms and conditions as provided with respect to the Initiating Stockholder) up sale by the Transferor to that such Transferee, the number of Subject Securities representing shares of Common Stock Equivalents at (rounded to the time held by such Participating Offeree as shall nearest whole share) equal to the product of (i) a fraction, the numerator total number of shares of Common Stock which is Purchaser then owns that were acquired upon conversion of the Series C Cumulative Convertible Preferred Stock and the number of shares Purchaser may acquire upon conversion of the Series C Cumulative Convertible Preferred Stock Purchaser then owns and (ii) a fraction with a numerator equal to the number of shares of Common Stock Equivalents then being sold by the Transferor and a denominator equal to the total number of shares of Common Stock owned by such Participating Offeree as the Transferor and the other members of the date Smitx Xxxup. The right of the Transferor to sell shall be subject to the condition that the Transferor shall cause the Transferee that proposes to purchase the shares of the Transferor to offer to purchase, on such proposed Transfer and terms (including closing date), such number of shares from Purchaser; provided, however, that if the denominator of which Transferee is for any reason unwilling or unable to purchase the aggregate number of Common Stock Equivalents owned as of shares from the date of such Participation Notice Transferor and Purchaser contemplated by each Initiating Stockholder and by all Participating Offerees so electing to sell Subject Securities pursuant to this Section 2.4(a)the foregoing, multiplied by (ii) the number of Participation Securities. The amount of Participation Securities shares to be sold by any Initiating Stockholder each shall be reduced to such number as, when taken with the extent necessary numbers of shares to provide for be sold by each other such sales of Subject Securities by Participating Offerees. (b) At the closing of any proposed Transfer in respect of which a Participation Notice has been deliveredparty, the Initiating Stockholder, together with all Participating Offerees so electing to sell Subject Securities pursuant to this Section 2.4(a) shall deliver be equal to the proposed transferee certificates and/or other instruments representing the Subject Securities number 2 of shares which such Transferee is willing or able to be sold, free and clear of all liens and encumbrances, together with stock or other appropriate powers duly endorsed therefor, purchase and shall receive in exchange therefor comply with the consideration to be paid or delivered by the proposed transferee in respect of such Subject Securities as described in the Participation Notice. (c) The provisions first sentence of this Section 2.4 shall not apply to (i) any Transfer pursuant to a Public Offering, (ii) following a Public Offering, pursuant to a Rule 144 Transaction or (iii) any Transfers pursuant to Section 2.5 hereof1(a). 2.5Purchaser may only sell shares of Common Stock hereunder that it has acquired upon conversion of Series C Cumulative Convertible Preferred Stock.