Common use of Transfer of Subject Shares Clause in Contracts

Transfer of Subject Shares. (a) Subject to Section 3.1(c), each of the Investors shall not, and shall cause their Affiliates not to, Transfer all or any portion of the Subject Shares, except (i) pursuant to its registration rights set forth in the Registration Rights Agreement dated as of June 5, 2008, as amended by Amendment No. 1 to the Registration Rights Agreement, dated as of May 28, 2009 and Amendment No. 2 to the Registration Rights Agreement, dated as of May 4, 2010 in a widely-distributed public offering, (ii) pursuant to its registration rights set forth in the Registration Rights Agreement dated as of August 5, 2010 in a widely-distributed public offering, (iii) pursuant to Rule 144 of the Securities Act, (iv) to the Company pursuant to Section 3.2 or (v) pursuant to any other exemption from registration under the Securities Act after compliance with Section 3.2. (b) Any Transfer pursuant to Section 3.1(a) shall be subject to the following limitations: (i) Without limiting the other provisions of this Article III, the Investors shall not, without the prior written consent of Phoenix, 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 III) of all or any portion of the Subject Shares, in one or a series of transactions (other than as described in Section 3.1(a)(i), Section 3.1(a)(ii) or Section 3.1(a)(iii)), to any Person that at the time of the disposition is a Prohibited Person. (ii) The Investors shall not dispose of or agree to dispose of five percent (5%) or more of the Subject Shares to a single Person or “group” (as defined in Section 13(d)(3) of the Exchange Act) (a “Group”), directly or indirectly, in a single transaction or a series of related transactions, unless such Person or Persons execute a joinder agreement, agreeing to abide by Section 2.1 and this Article III (other than as described in Section 3.1(a)(i), Section 3.1(a)(ii) or Section 3.1(a)(iii)); 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 3.1(b)(ii). (c) Notwithstanding the foregoing, the Investors may at any time: (i) Transfer all or any portion of the Subject Shares to an Affiliate; provided, that prior to any Transfer pursuant to this Section 3.1(c)(i), such transferee shall have agreed in writing to be bound by the terms of this Agreement pursuant to documentation reasonably satisfactory to the parties hereto; and provided, further, that no Transfer pursuant to this Section 3.1(c)(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 Subject Shares during the term of this Agreement constituting not more than one percent (1%) in the aggregate of Voting Securities at any given time; provided, that such Transfers are made in the open market pursuant to ordinary brokerage transactions; (iii) tender their Subject Shares pursuant to a tender offer for the Common Stock that has been affirmatively recommended by a majority of the Board; or (iv) Transfer their Subject Shares pursuant to a merger that has been affirmatively recommended or approved by a majority of the Board. (d) Notwithstanding anything to the contrary herein, the restrictions on Transfer set forth in this Section 3.1 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 fifty percent (50%) of the aggregate outstanding securities of the Company resulting from such reorganization, merger or consolidation. For the avoidance of doubt, the transactions contemplated by the Purchase Agreement and the Exchange Agreement do not constitute a Change of Control.