PARTIES IN WRITING OF
A COMPELLED SALE (A "COMPELLED SALE NOTICE"), AS SOON AS PRACTICABLE AFTER THE
DEFINITIVE TERMS OF SUCH TRANSACTION ARE KNOWN.
SUCH COMPELLED SALE NOTICE
SHALL SET FORTH ALL OF THE MATERIAL TERMS AND CONDITIONS OF THE COMPELLED SALE,
INCLUDING, WITHOUT LIMITATION, THE PROPOSED AMOUNT AND NATURE OF CONSIDERATION
AND ALL OTHER MATERIAL TERMS AND CONDITIONS, INCLUDING THE PROPOSED CLOSING DATE
OF THE COMPELLED SALE AND ALL APPLICABLE REPRESENTATIONS, INDEMNITIES AND OTHER
CONTRACT PROVISIONS.
THE OTHER PARTIES (AND EACH OF THEM) SHALL EXECUTE AND
DELIVER TO HOLDINGS WITHIN (10) BUSINESS DAYS AFTER DELIVERY TO SUCH OTHER
PARTIES FOR SUCH EXECUTION, ALL DOCUMENTS, OTHER THAN THE COMPELLED SALE SHARES,
REQUIRED TO BE EXECUTED BY EACH SUCH OTHER PARTY IN ORDER TO CONSUMMATE SUCH
COMPELLED SALE, ALL SUBJECT TO THE FOLLOWING:
(I)
UNLESS OTHERWISE AGREED UPON BY THE
OTHER PARTIES, IF THE SALE OF BUSINESS TRANSACTION IS STRUCTURED AS A SALE OF
CAPITAL STOCK, THE TERMS AND CONDITIONS APPLICABLE TO THE SALE OF THE CAPITAL
STOCK OF HOLDINGS OWNED BY THE OTHER PARTIES SHALL BE SUBSTANTIALLY THE SAME TO
THOSE APPLICABLE TO THE SALE OF THE CAPITAL STOCK BY THE COMPELLED SALE
TRANSFEROR,
13
including, without limitation, the amount and nature of consideration and
subject to the same representations, indemnities and the like required of the
Compelled Sale Transferor.
(II)
UPON A SALE OF BUSINESS TRANSACTION, EACH
PARTY THAT OWNS PREFERRED STOCK WILL RECEIVE CONSIDERATION IN AN AMOUNT PER
SHARE OF PREFERRED STOCK EQUAL TO THE LIQUIDATION AMOUNT OF SUCH SHARE AS SET
FORTH IN HOLDINGS CERTIFICATE OF INCORPORATION.
FOR THE AVOIDANCE OF DOUBT, IF
THE TOTAL CONSIDERATION PAYABLE IN RESPECT OF ANY SUCH SALE OF BUSINESS
TRANSACTION IS NOT SUFFICIENT TO PAY THE AGGREGATE LIQUIDATION AMOUNT OF EACH
SHARE OF PREFERRED STOCK THEN OUTSTANDING TO THE HOLDERS THEREOF, THEN SUCH
HOLDERS WILL SHARE ALL OF SUCH CONSIDERATION IN ACCORDANCE WITH SECTION B(3) OF
ARTICLE FOURTH OF THE HOLDINGS CERTIFICATE OF INCORPORATION AND THE HOLDERS OF
COMMON STOCK WILL NOT BE ENTITLED TO RECEIVE ANY CONSIDERATION IN RESPECT OF
SUCH SALE OF THE BUSINESS.
(III)
NOTWITHSTANDING THE FOREGOING, NO OTHER
PARTY SHALL BE REQUIRED TO PROVIDE FOR INDEMNIFICATION TO THE COMPELLED SALE
PURCHASER (A) OTHER THAN ON A SEVERAL (AND NOT JOINT AND SEVERAL) BASIS AND
(B) IN EXCESS OF THE PROCEEDS ACTUALLY RECEIVED BY SUCH OTHER PARTY.
THE
COMPELLED SALE TRANSFEROR AND EACH OF THE OTHER PARTIES SHALL BEAR THEIR OWN
COSTS AND EXPENSES RELATED TO THE COMPELLED SALE.
(IV)
UNLESS THE COMPELLED SALE PURCHASER SHALL
AGREE TO THE CONTRARY, PRIOR TO ANY TRANSFER TO THE COMPELLED SALE PURCHASER,
THE OTHER PARTIES SHALL EXERCISE, CONVERT OR EXCHANGE SUCH NUMBER OF THEIR
DERIVATIVE SECURITIES AS MAY BE NECESSARY SO THAT ONLY SHARES OF COMMON STOCK
ARE TRANSFERRED.
(D)
THE OTHER PARTIES SHALL (I) VOTE FOR, CONSENT TO AND RAISE NO OBJECTIONS
AGAINST ANY COMPELLED SALE PURSUANT TO THIS SECTION 2.5, AND (II) ENTER INTO
SUCH DEFINITIVE AGREEMENTS AS ARE CONSISTENT WITH SUBSECTION (C) ABOVE.
IF THE
COMPELLED SALE