Exhibit 10.2
EXECUTION COPY
AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT
AMENDED AND RESTATED STOCKHOLDERS
AGREEMENT, dated as of December 21, 2006, by and among US
ONCOLOGY HOLDINGS, INC. (formerly known as Oiler Holding Company),
a Delaware corporation (the “ Company ”), WELSH,
CARSON, ANDERSON & STOWE IX, L.P., a Delaware limited
partnership (“ WCAS IX ”), MORGAN STANLEY
STRATEGIC INVESTMENTS, INC., a Delaware corporation (“
Morgan Stanley ”), and each of the other individuals
and entities from time to time named on Schedule I hereto
(together with WCAS IX and Morgan Stanley, and together with their
respective Permitted Transferees and their respective successors
and assigns that become a party to this Agreement in accordance
with the terms hereof, each a “ Stockholder ”
and collectively, the “ Stockholders
”).
RECITALS
WHEREAS, the Company, WCAS IX and
certain other Stockholders entered into the original Stockholders
Agreement, dated as of August 20, 2004 (the “
Original Stockholders Agreement ”), to provide for
certain matters relating to the shares of Participating Preferred
Stock, par value $0.001 per share, of the Company (the “
Series A Preferred Stock ”), and the shares of Common
Stock, par value $0.001 per share, of the Company (“
Company Common Stock ”), in each case, held by such
Stockholders;
WHEREAS, the Company and Morgan
Stanley have entered into a Stock Purchase Agreement, dated as of
December 21, 2006 (the “ Stock Purchase Agreement
”), pursuant to which the Company has agreed to sell to
Morgan Stanley shares of Series A-1 Participating Preferred Stock,
par value $0.001 per share, of the Company (the “ Series
A-1 Preferred Stock ” and together with the Series A
Preferred Stock, the “ Company Preferred Stock
”) and shares of Company Common Stock; and
WHEREAS, in connection with the
investment contemplated by the Stock Purchase Agreement, the
Company, WCAS IX and certain other Stockholders wish to amend and
restate the Original Stockholders Agreement in the manner set forth
herein;
NOW, THEREFORE, in consideration of
the premises and of the mutual covenants and agreements herein
contained, the parties hereto hereby agree as follows:
ARTICLE I.
INTRODUCTORY
MATTERS
SECTION 1.01. Defined Terms .
In addition to the terms defined elsewhere herein, the following
terms have the following meanings when used herein with initial
capital letters:
“ Affiliate ”
means, with respect to any specified Person, a Person that
directly, or indirectly through one or more intermediaries,
Controls, is Controlled by or is under common Control with, the
specified Person; provided , that officers, directors or
employees of the Company or USON will not be deemed to be
Affiliates of a stockholder of the Company for purposes hereof
solely by reason of being officers, directors or employees of the
Company or USON; provided , further , that, for
purposes of Section 8.02(vi) and the definition of Third Party
contained in Section 4.01, no portfolio company of WCAS IX (or
of any other investment partnership under common control with WCAS
IX) shall be deemed to be an Affiliate of the Company or WCAS IX
unless a majority of the outstanding voting securities or 25% or
more of the economic interests of such portfolio company are owned,
directly or indirectly, by WCAS IX and/or such other investment
partnership.
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“ Agreement ”
means this Agreement, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with the terms
hereof.
“ Assumption Agreement
” means a writing reasonably satisfactory in form and
substance to the Company and WCAS IX whereby a Permitted Transferee
of Company Equity Securities becomes a party to, and agrees to be
bound (to the same extent as its transferor) by, the terms of this
Agreement as a “Stockholder” hereunder.
“ Board ” means
the Board of Directors of the Company.
“ Business Day ”
means a day other than a day on which commercial banks in New York,
New York or Houston, Texas are authorized or required by law to
close.
“ Commission ”
means the Securities and Exchange Commission, or any other federal
agency at the time administering the Securities Act.
“ Company Capital Stock
” means the Company Common Stock, the Company Preferred Stock
and any other class or series of capital stock or other equity
stock of the Company.
“ Company Certificate
” means the Second Amended and Restated Certificate of
Incorporation of the Company, as amended, restated or
modified.
“ Company Equity
Securities ” means all shares of Company Capital Stock
now or hereafter issued and all Options or Convertible Securities
now or hereafter issued.
“ Company Stock Plans
” means all stock option plans, restricted stock purchase
plans and other stock-based employee benefit plans and agreements
approved by the Board, including the Company’s 2004 Equity
Incentive Plan.
“ Control ”
(including the terms “ Controlling ”, “
Controlled by ” and “under common Control
with”) means the possession, direct or indirect, of the power
to direct or cause the direction of the management and policies of
a Person, whether through the ownership of voting securities, by
contract or otherwise.
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“ Designated Affiliate
” means (i) in the case of any Stockholder that is not a
natural person, any Affiliate of such Stockholder, (ii) in the
case of a Stockholder who is a natural person, such
Stockholder’s parents, spouse and lineal descendants and the
lineal descendants of such Stockholder’s spouse, or trusts
for the benefit of, or corporations, limited liability companies or
partnerships, the stockholders, members or general and/or limited
partners of which include, only such Stockholder and/or
Stockholder’s parents, spouse or lineal descendants or the
lineal descendants of such Stockholder’s spouse,
(iii) in the case of WCAS IX and each of its Designated
Affiliates under this clause (iii), WCAS IX and each general or
limited partner, manager, member, officer, director or employee
thereof, and (iv) in the case of Morgan Stanley and each of
its Designated Affiliates under this clause (iv), Morgan Stanley
and each stockholder, partner, manager, member, director or officer
thereof. For purposes of the foregoing, lineal descendants shall be
deemed to include children by adoption.
“ Exchange Act ”
means the Securities Exchange Act of 1934, or any successor federal
statute, and the rules and regulations of the Commission
thereunder, as the same may be amended from time to
time.
“ Fully Diluted Basis
” means, with respect to any determination of the number of
shares of Company Common Stock outstanding or held by one or more
Persons, the number of shares of Company Common Stock outstanding
or held by such Persons (excluding any unvested shares of
restricted Company Common Stock issued under Company Stock Plans)
assuming (i) the conversion of each outstanding share of
Company Preferred Stock into that number of shares of Company
Common Stock equal to the Conversion Constant (as defined in
Section I of Article FOURTH of the Company Certificate) as in
effect at the time of such determination and (ii) the full
conversion, exercise and exchange of all other Options or
Convertible Securities for Company Common Stock (excluding options
and other rights issued under Company Stock Plans and excluding any
other Options or Convertible Securities which are not exercisable
or which have not vested or shares received upon the exercise of
such Options or Convertible Securities which would not be vested);
provided , however , that in connection with a
Proposed Sale (as defined in Section 3.01(a)), unvested shares
of restricted Company Common Stock issued under Company Stock Plans
which would vest at or before the consummation of such Proposed
Sale shall not be excluded from the determination of the number of
shares of Company Common Stock held by a Tagging Stockholder;
provided , further , however , that in
connection with determining whether a Stockholder is a Qualified
Stockholder or determining a Qualified Stockholder’s
Proportionate Percentage for purposes of Article V, unvested shares
of restricted Company Common Stock issued under Company Stock Plans
shall not be excluded from the determination of the number of
shares of Company Common Stock held by such Stockholder.
“ Options or Convertible
Securities ” means any securities (including, without
limitation, any options, warrants or other rights) which are
directly or indirectly convertible into or exercisable or
exchangeable for Company Capital Stock.
“ Permitted Transferee
” means any (i) Person to whom Company Equity Securities
are Transferred in a Transfer in accordance with Section 2.02
and otherwise not in violation of this Agreement and who enters
into an Assumption Agreement and (ii) Person to whom Company
Equity Securities are Transferred by any Stockholder in a Transfer
in accordance with Section 2.01(a)(i) who agrees in writing to
become a party to and agrees to be bound (to the
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same extent as its transferor) by, the terms of
this Agreement as a “Stockholder” hereunder, it being
understood, in each case, that neither the Company nor any of its
Subsidiaries shall be considered to be Permitted
Transferees.
“ Person ” means
any natural person, corporation, limited liability company,
partnership, trust, joint stock company, business trust,
unincorporated association, joint venture, governmental authority
or other legal entity of any nature whatsoever.
“ Public Offering
” means the sale of shares of Company Common Stock to the
public pursuant to an effective registration statement (other than
a registration statement on Form S-4, Form S-8 or any similar or
successor form) filed under the Securities Act.
“ Qualified Merger
” means the consummation of any sale of all then outstanding
Company Equity Securities (whether by means of a merger or
otherwise), or sale of all or substantially all of the
Company’s assets to, a Third Party, if the holders of shares
of Company Equity Securities, as consideration for such sale,
directly or indirectly, receive equity securities which are
tradable on a national securities exchange (i) without further
registration under the Securities Act and (ii) without being
subject to any volume limitations set forth in Rule 144 promulgated
under the Securities Act.
“ Qualified Public
Offering ” means any firm commitment underwritten Public
Offering in which the aggregate proceeds to the Company (together
with the aggregate proceeds in all such prior public offerings) are
at least $100.0 million.
“ Qualified Stockholder
” means any Stockholder who (individually or together with
its Designated Affiliates), at the time of determination, holds on
a Fully Diluted Basis not less than 500,000 shares (as adjusted for
any stock splits, stock dividends, stock combinations and similar
events occurring after the date hereof) of Company Common
Stock.
“ Schedule IV Purchaser
” means any Schedule IV Purchaser under and as defined in the
Stock Subscription Agreement (which Stockholders are listed on
Schedule I hereto under the heading “Schedule IV
Purchasers”) so long as such Stockholder continues to own,
collectively with its Permitted Transferees, at least 50% of the
shares of Company Common Stock and 50% of the shares of Company
Preferred Stock owned by it on August 20, 2004 after giving
effect to the transactions contemplated by the Stock Subscription
Agreement.
“ Securities Act
” means the Securities Act of 1933, or any successor federal
statute, and the rules and regulations of the Commission
thereunder, as the same may be amended from time to
time.
“ Stock Subscription
Agreement ” means the Stock Subscription and Exchange
Agreement, dated as of August 20, 2004, by and among the
Company, WCAS IX and certain Stockholders.
“ Subsidiary ” of
a Person means any Person of which equity securities or other
ownership interests having ordinary voting power to elect a
majority of the board of directors, the general partner, the
manager or other Persons performing similar functions are at the
time
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directly or indirectly owned by the Person.
Unless the context otherwise requires, references to one or more
Subsidiaries are references to Subsidiaries of the
Company.
“ Transfer ”
means a transfer, sale, assignment, pledge, hypothecation or other
disposition (including by operation of law), whether directly or
indirectly pursuant to the creation of a derivative security, the
grant of an option or other right or the imposition of a
restriction on disposition or voting.
“ USON ” means US
Oncology, Inc., a Delaware corporation, and a wholly owned
Subsidiary of the Company.
“ Voting Proxy ”
means any irrevocable proxy granted to WCAS IX by a Stockholder and
shall include each “Voting Proxy” referred to in the
Stock Subscription Agreement.
SECTION 1.02. Construction .
(a) The parties hereto have participated jointly in the
negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the parties
and no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any provisions
of this Agreement. Unless the context otherwise requires:
(i) “ or ” is disjunctive but not
exclusive, (ii) words in the singular include the plural, and
in the plural include the singular, (iii) the words “
hereof ”, “ herein ”, and “
hereunder ” and words of similar import when used in
this Agreement refer to this Agreement as a whole and not to any
particular provision of this Agreement, (iv) the headings
contained in this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation of this
Agreement, (v) the words “Article” and
“Section” are references to the articles and sections
of this Agreement unless otherwise specified and (vi) whenever
the words “ include ”, “ includes
” or “ including ” are used in this
Agreement they shall be deemed to be followed by the words
“without limitation”.
(b) References herein to WCAS IX, to
the extent such entity shall have transferred any of its shares of
Company Capital Stock to one or more Permitted Transferees, shall
mean WCAS IX and such Permitted Transferees, taken together, and
any right or action that may be taken at the election of WCAS IX
may be taken at the election of WCAS IX and such Permitted
Transferees to the extent WCAS IX has agreed in writing to transfer
such rights to any such Permitted Transferee.
(c) References herein to Morgan
Stanley, to the extent such entity shall have transferred any of
its shares of Company Capital Stock to one or more Permitted
Transferees, shall mean Morgan Stanley and such Permitted
Transferees, taken together, and any right or action that may be
taken at the election of Morgan Stanley may be taken at the
election of Morgan Stanley and such Permitted Transferees to the
extent Morgan Stanley has agreed in writing to transfer such rights
to any such Permitted Transferee.
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ARTICLE II.
TRANSFERS
SECTION 2.01. Transfers .
(a) No Stockholder may Transfer any Company Equity Securities
other than:
(i) with respect to Transfers by
Stockholders other than by WCAS IX, Transfers made with the written
consent of WCAS IX; provided , that, notwithstanding the
foregoing, any employee, officer or director of the Company or any
of its subsidiaries may Transfer Company Equity Securities to the
Company or any of its Subsidiaries; provided ,
further , that notwithstanding the foregoing, in the case of
any proposed Transfer by Morgan Stanley or any of its Permitted
Transferees after the third anniversary of the date hereof, such
written consent of WCAS IX will not be unreasonably withheld,
delayed or conditioned;
(ii) Transfers made in accordance
with Section 2.02;
(iii) Transfers made in accordance
with Article III (including any Excluded Transactions (as defined
in Section 3.01(a)); or
(iv) Transfers made in accordance
with Article IV.
Any attempted Transfer of Company
Equity Securities in violation of the provisions of this Agreement
shall be null and void ab initio and of no
effect.
(b) Each certificate representing
Company Equity Securities that is held by a Stockholder will bear a
legend substantially to the following effect with such additions
thereto or changes therein as the Company may be advised by counsel
are required by law or necessary to give full effect to this
Agreement (the “ Stockholders Agreement Legend
”):
“THE SECURITIES REPRESENTED BY
THIS CERTIFICATE ARE SUBJECT TO A STOCKHOLDERS AGREEMENT, AMENDED
AND RESTATED AS OF DECEMBER 21, 2006, AMONG THE COMPANY AND THE
OTHER PARTIES THERETO, AS AMENDED, A COPY OF WHICH IS ON FILE WITH
THE SECRETARY OF THE COMPANY. NO TRANSFER, SALE, ASSIGNMENT,
PLEDGE, HYPOTHECATION OR OTHER DISPOSITION OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE MAY BE MADE EXCEPT IN ACCORDANCE
WITH THE PROVISIONS OF SUCH STOCKHOLDERS AGREEMENT. THE HOLDER OF
THIS CERTIFICATE, BY ACCEPTANCE OF THIS CERTIFICATE, AGREES TO BE
BOUND BY ALL OF THE PROVISIONS OF SUCH STOCKHOLDERS
AGREEMENT.”
The Stockholders Agreement Legend
will be removed by the Company by the delivery of substitute
certificates without such Stockholders Agreement Legend in the
event of (i) a Transfer permitted by this Agreement in which
the Transferee is not required to enter into an Assumption
Agreement or (ii) the termination of this Agreement in
accordance with Section 10.07.
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(c) The Company shall not give
effect to any attempted Transfer of Company Equity Securities made
in violation of the terms of any Voting Proxy, and any attempted
Transfer in violation of the terms thereof shall be null and void
ab initio and of no effect. At all times prior to the
expiration of any Voting Proxy, the Company shall use its best
efforts to comply with the provisions of such Voting Proxies
relating to the placing of legends on Company Equity Securities,
and each Stockholder granting any such Voting Proxy hereby consents
to the placing of such legends on such certificates.
SECTION 2.02. Transfers to
Permitted Transferees . Any Stockholder may, at any time,
Transfer any or all of the Company Equity Securities held by such
Stockholder to any one or more Designated Affiliates of such
Stockholder so long as each such Designated Affiliate duly executes
and delivers an Assumption Agreement (such Transfer to be effective
only upon the delivery of such Assumption Agreement to the Company
and WCAS IX); provided , that if the Company so requests
promptly following (and, in any event, within five
(5) Business Days after) its receipt of such Assumption
Agreement, such Assumption Agreement shall not be effective unless
and until the Company has been furnished with an opinion in form
and substance reasonably satisfactory to the Company of counsel
reasonably satisfactory to the Company that such Transfer is exempt
from or not subject to the provisions of Section 5 of the
Securities Act and any other applicable securities laws.
Notwithstanding the foregoing, no party hereto shall avoid the
provisions of this Agreement by making one or more Transfers to one
or more Permitted Transferees and then disposing of all or any
portion of such party’s interest in any such Permitted
Transferee.
SECTION 2.03. Securities Law
Compliance . (a) Each Stockholder agrees that it will not
effect any Transfer of Company Equity Securities held by such
Stockholder unless such Transfer is made pursuant to an effective
registration statement under the Securities Act or pursuant to an
exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act and, in either
case, in compliance with all applicable state securities laws. The
Company agrees, and each Stockholder understands and consents, that
(i) the Company will not cause or permit the Transfer of any
Company Equity Securities to be made on its books (or on any
register of securities maintained on its behalf) unless the
Transfer is permitted by, and has been made in accordance with the
terms of this Agreement and all applicable federal and state
securities laws and (ii) no Transfer of Company Equity
Securities under this Article II shall be permitted if such
Transfer would require the Company to register a class of equity
securities under Section 12 of the Exchange Act under
circumstances where the Company does not then have securities of
any class registered under Section 12 of the Exchange Act. Any
attempted Transfer in violation of the terms hereof shall be null
and void ab initio and of no effect. Each Stockholder agrees
that in connection with any Transfer of Company Equity Securities
that is not made pursuant to a registered public offering, the
Company may, in its sole discretion, request an opinion in form and
substance reasonably satisfactory to the Company of counsel
reasonably satisfactory to the Company stating that such
transaction is exempt from registration under the Securities Act
and in compliance with applicable state securities laws.
(b) From and after the date hereof,
and until such time as such securities have been sold to the public
pursuant to an effective registration statement under the
Securities Act or pursuant to an exemption from such registration
and the holder of such securities shall have requested the issuance
of new certificates in writing and, if requested by the Company,
delivered
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to the Company an opinion in form and substance
reasonably satisfactory to the Company of counsel reasonably
satisfactory to the Company to such effect, all certificates
representing Company Equity Securities that are held by any
Stockholder shall bear a legend which shall state the
following:
“THE SECURITIES EVIDENCED BY
THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, AND NO INTEREST HEREIN MAY BE SOLD, OFFERED,
ASSIGNED, DISTRIBUTED, PLEDGED OR OTHERWISE TRANSFERRED UNLESS
(A) THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH
ACT COVERING ANY SUCH TRANSACTION OR (B) THE COMPANY RECEIVES
AN OPINION IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE
COMPANY OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY STATING
THAT SUCH TRANSACTION IS EXEMPT FROM SUCH REGISTRATION AND IN
COMPLIANCE WITH ALL APPLICABLE STATE SECURITIES LAWS OR
(C) THE COMPANY AND ITS COUNSEL ARE OTHERWISE SATISFIED THAT
SUCH TRANSACTION IS EXEMPT FROM SUCH REGISTRATION AND IN COMPLIANCE
WITH ALL STATE SECURITIES LAWS.”
ARTICLE III.
TAG-ALONG RIGHTS
SECTION 3.01. Tag-Along
Rights . (a) With respect to any proposed Transfer by WCAS
IX and/or any of its Permitted Transferees (collectively, the
“ Selling Stockholder ”) of shares of Company
Capital Stock to any Person who is not a Designated Affiliate of
the Selling Stockholder other than (i) pursuant to any
agreement or plan of merger or combination, including any tender or
exchange offer in respect thereof, that is approved by the Board
and does not involve a disproportionate Transfer by the Selling
Stockholder of shares of the applicable class of Company Capital
Stock or (ii) any transaction or transactions for strategic
purposes that (when aggregated with all shares sold in connection
with prior Transfers that were deemed to be Excluded Transactions
under this clause (ii)) result in the Transfer by the Selling
Stockholder since August 20, 2004 of (x) less than an
aggregate 1,069,106 (as adjusted for any stock splits, stock
dividends, stock combinations and similar events occurring after
August 20, 2004) shares of Company Preferred Stock and/or
(y) less than an aggregate 7,483,744 shares (as adjusted for
any stock splits, stock dividends, stock combinations and similar
events occurring after August 20, 2004) of Company Common
Stock (any such transaction referred to in clause (i) or
(ii) above, an “ Excluded Transaction ”,
and any such transaction not excluded under clause (i) or
(ii) above, a “ Proposed Sale ”), each
Stockholder (other than the Selling Stockholder) who exercises its
rights under this Section 3.01(a) in accordance with this
Section 3.01 (each a “ Tagging Stockholder
”) will have the right to include the following in the
proposed sale to the proposed transferee(s) of shares (the “
Proposed Transferee ”) or sell the following to the
Selling Stockholder (if such Proposed Transferee will not agree to
purchase shares directly from such Tagging Stockholder, and in such
case the Selling Stockholder shall be obligated to purchase from
such Stockholder the following): (1) if the Selling
Stockholder proposes to Transfer shares of Company Preferred Stock
in such Proposed Sale, a number of shares of Company Preferred
Stock up to the product (rounded down to the nearest whole number)
of (i) the quotient
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determined by dividing (A) the aggregate
number of shares of Company Preferred Stock owned by such Tagging
Stockholder by (B) the aggregate number of shares of Company
Preferred Stock then outstanding and (ii) the total number of
shares of Company Preferred Stock proposed to be Transferred to the
Proposed Transferee(s) and/or (2) if the Selling Stockholder
proposes to Transfer shares of Company Common Stock in such
Proposed Sale, a number of shares of Company Common Stock up to the
product (rounded down to the nearest whole number) of (i) the
quotient determined by dividing (A) the aggregate number of
shares of Company Common Stock owned by such Tagging Stockholder on
a Fully Diluted Basis by (B) the aggregate number of shares of
Company Common Stock then outstanding on a Fully Diluted Basis and
(ii) the total number of shares of Company Common Stock
proposed to be Transferred to the Proposed Transferee(s), at the
same price(s) per share of Company Preferred Stock and/or Company
Capital Stock, as the case may be, and upon the same terms and
conditions (including time of payment, form of consideration and
adjustments to purchase price) as the Selling Stockholder;
provided , that in order to be entitled to exercise its
right to sell shares of Company Capital Stock to the Proposed
Transferee pursuant to this Section 3.01, each Tagging
Stockholder (x) shall agree to the same covenants as the
Selling Stockholder agrees to in connection with the Proposed Sale,
(y) shall be obligated to join on a pro rata (and
several) basis (based on the proceeds received by such Tagging
Stockholder in connection with the Proposed Sale) in any
indemnification that the Selling Stockholder agrees to provide in
connection with the Proposed Sale (other than in connection with
obligations that relate to a particular Stockholder such as
representations and warranties concerning itself for which each
Stockholder shall agree to be solely responsible, and provided
further that the liability for any such pro rata (and
several) indemnification obligations shall not exceed the total
consideration received by such Stockholder for such shares), and
(z) shall make such representations and warranties concerning
itself and the shares of Company Capital Stock to be sold by it in
connection with such Transfer as the Selling Stockholder makes with
respect to itself and its shares (such terms and conditions of any
Proposed Sale being the “ Tag-Along Terms
”).
(b) Each Tagging Stockholder will be
responsible for funding its proportionate share of any adjustment
in purchase price or escrow arrangements in connection with the
Proposed Sale and for its proportionate share of any withdrawals
from any such escrow, including any such withdrawals that are made
with respect to claims arising out of agreements, covenants,
representations, warranties or other provisions relating to the
Proposed Sale.
(c) Each Tagging Stockholder will be
responsible for its proportionate share of the fees, commissions
and other out-of-pocket expenses (collectively, “
Costs ”) of the Proposed Sale to the extent not paid
or reimbursed by the Company, the Proposed Transferee or another
Person (other than the Selling Stockholder); provided , that
the liability for such Costs shall not exceed the total purchase
price received by such Stockholder for such shares (or if such
Proposed Sale does not occur, such proposed purchase price). The
Selling Stockholder shall be entitled to estimate each Tagging
Stockholder’s proportionate share of such Costs and to
withhold such amounts from payments to be made to each Tagging
Stockholder at the time of closing of such Proposed Sale;
provided , that (i) such estimate shall not preclude
the Selling Stockholder from recovering additional amounts from the
Tagging Stockholders in respect of each such Tagging
Stockholder’s proportionate share of such Costs and
(ii) the Selling Stockholder shall reimburse each Tagging
Stockholder to the extent actual amounts are
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ultimately less than the estimated amounts or
any such amounts are paid by the Company, the Proposed Transferee
or another Person (other than the Selling Stockholder).
SECTION 3.02. Exercise of
Tag-Along Rights; Notices . The Selling Stockholder will give
the Company prior written notice of each Proposed Sale, setting
forth the number and type of shares of Company Capital Stock
proposed to be so Transferred, the name and address of the Proposed
Transferee, the proposed amount and form of consideration and other
material Tag-Along Terms offered by the Proposed Transferee. In the
event that any of the material terms or conditions set forth in the
notice are thereafter amended in any material respect, the Selling
Stockholder shall also give written notice of the amended terms and
conditions of the Proposed Sale to the Company. Upon its receipt of
any such notice or amended notice, the Company shall promptly, but
in all events within two (2) Business Days of its receipt
thereof, forward copies thereof to each of the Stockholders other
than the Selling Stockholder (such initial notice, the “
Tag-Along Opportunity Notice ” and any amended notice,
an “ Amended Tag-Along Opportunity Notice ”). In
order to exercise the tag-along rights provided by this Article III
a Stockholder must send a written notice to the Company and the
Selling Stockholder indicating its desire to exercise its rights
and specifying the number and type of shares of Company Capital
Stock it desires to sell (the “ Tag-Along Exercise
Notice ”) within ten (10) days following the receipt
of the Tag-Along Opportunity Notice by such Stockholder (or if an
Amended Tag-Along Opportunity Notice is given to the Stockholders
within such ten (10) day period, within five (5) days
following the receipt of such Amended Tag-Along Opportunity Notice
by such Stockholder). Upon the receipt of an Amended Tag-Along
Opportunity Notice by a Stockholder that had previously provided a
Tag-Along Exerci
