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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:
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(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 "):
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"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:
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"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 Exercise Notice, such
Tagging Stockholder shall be permitted to cancel its exercise of
its rights under this Article III upon delivery of written notice
to the Selling Stockholder and the Company to such effect and shall
be released from its obligation hereunder. There shall be no
liability on the part of the Selling Stockholder to any Tagging
Stockholder if the sale of shares of Company Capital Stock pursuant
to this Article III is not consummated for whatever reason. Whether
or not to effect a sale of shares of Company Capital Stock pursuant
to this Article III shall be within in the sole and absolute
discretion of the Selling Stockholder.
SECTION 3.03. Closing of Proposed Sale . (a) Each
Tagging Stockholder shall deliver to the Company, as agent for such
Tagging Stockholder, for transfer to the Proposed Transferee one or
more certificates, properly endorsed for transfer and with all
stock transfer taxes paid and stamps affixed, which represent the
shares of Company Capital Stock that such Tagging Stockholder is
permitted to dispose of pursuant to this Article III. The
consummation of such Proposed Sale shall be subject to the s
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