Common use of Transfer of Common Stock Clause in Contracts

Transfer of Common Stock. (a) Subject to Section 4.1(d), the Investor shall not, shall cause its Affiliates not to, directly or indirectly, transfer, sell, hedge, assign, gift, pledge, encumber, hypothecate, mortgage, exchange or otherwise dispose of (including through the sale or purchase of options or other derivative instruments with respect to the Common Stock or otherwise) by operation of Law or otherwise (any such occurrence, a “Transfer”) (other than a Transfer (i) permitted in accordance with subsection (b) or (d) below or (ii) required by, and in accordance with, Section 3.3 above), all or any portion of the Shares, or their economic interest therein, prior to the date that is 12 months following the date hereof (such date, the “Lockup Date”) without the prior written consent of the Company. (b) Subject to Section 4.1(d), after the Lockup Date, the Investor shall not, and shall cause its Affiliates not to, Transfer all or any portion of the Shares, except (i) pursuant to its registration rights set forth in Article VI in a widely-distributed Public Offering, (ii) pursuant to Rule 144 of the Securities Act, (iii) pursuant to Section 3.3 above, (iv) to the Company pursuant to Section 4.3 below, or (v) pursuant to any other exemption from registration under the Securities Act after compliance with Section 4.3 below. (c) Any Transfer pursuant to Section 4.1(b) shall be subject to the following limitations: (i) Without limiting the other provisions of this Article IV, the Investor shall not, without the prior written consent of the Company, knowingly dispose or agree to dispose (directly or indirectly, or pursuant to any series of related transactions intentionally structured to circumvent the provisions of this Article IV) of all or any portion of its shares of Common Stock, in one or a series of transactions (other than as described in Section 4.1(b)(i) or (ii) above), to any Person that at the time of the disposition is a Prohibited Person. (ii) The Investor shall not dispose of or agree to dispose of 5% or more of the shares of Common Stock to a single Person or Group, directly or indirectly, in a single transaction or a series of related transactions, unless such Person or Persons execute a Joinder Agreement, substantially in the form attached hereto as Exhibit A, agreeing to abide by Article III and Section 2.1 of this Agreement; provided, however that an underwriter, broker-dealer or registered agent shall not be considered as a Person or a member of a Group for purposes of this Section 4.1(c)(ii). (d) Notwithstanding the foregoing, the Investor may at any time: (i) Transfer shares of Common Stock owned by the Investor to an Affiliate; provided, that prior to any Transfer pursuant to this Section 4.1(d)(i), such transferee shall have agreed in writing to be bound by the terms of this Agreement pursuant to documentation reasonably satisfactory to the Company; and provided, further, that no Transfer pursuant to this Section 4.1(d)(i) shall relieve any transferor from any liability for damages incurred or suffered by the Company as a result of any breach of this Agreement by such transferor; (ii) Transfer a maximum aggregate number of shares of Common Stock during the term of this Agreement constituting not more than 1% in the aggregate of the Company’s total outstanding shares of Common Stock at any given time; provided, that such Transfers are made in the open market pursuant to ordinary brokerage transactions; (iii) tender its Shares pursuant to a tender offer for the Common Stock that has been affirmatively recommended by a majority of the Board; or (iv) Transfer its Shares pursuant to a merger that has been affirmatively recommended or approved by a majority of the Board. (e) Notwithstanding anything to the contrary herein, the restrictions on Transfer set forth in this Section 4.1 shall terminate upon a Change of Control. For purposes of this Agreement, a “Change of Control” shall mean (i) the acquisition by any Person or any Group of Beneficial Ownership of at least a majority of all outstanding voting securities of the Company (calculated on a fully-diluted basis), or (ii) the reorganization, merger or consolidation of the Company with respect to which all of the Persons who were the respective Beneficial Owners of the Company’s securities immediately prior to such reorganization, merger or consolidation do not, following such reorganization, merger or consolidation, beneficially own, directly or indirectly, more than 50% of the aggregate outstanding securities of the Company resulting from such reorganization, merger or consolidation.