BUT IN NO EVENT LATER
THAN THE BUSINESS DAY NEXT FOLLOWING THE CLOSING, REMIT TO THE TAG-ALONG
TRANSFEROR AND EACH PARTICIPATING TAG-ALONG PARTY ITS PORTION OF SUCH
CONSIDERATION.
(I)
IF ANY PROPOSED TRANSFER CONTEMPLATED BY SECTIONS 2.4(E) AND (G) ABOVE IS
TERMINATED OR IS OTHERWISE NOT CONSUMMATED FOR ANY REASON (IN THE CASE OF
TRANSFERS CONTEMPLATED BY SECTION 2.4(G) WITHIN THE NINETY (90) DAY PERIOD IN
WHICH SUCH TRANSFER MAY BE MADE), THE TAG-ALONG TRANSFEROR SHALL, WITHOUT
PREJUDICE TO ITS RIGHTS HEREUNDER TO DELIVER A SUBSEQUENT TAG-ALONG NOTICE,
PROVIDE WRITTEN NOTICE OF SUCH TERMINATION TO THE OTHER PARTIES AND SHALL
PROMPTLY RETURN TO ALL TAG-ALONG PARTIES WHO ELECTED TO PARTICIPATE IN SUCH
TRANSFER ALL DOCUMENTATION WHICH SUCH TAG-ALONG PARTIES HAD PREVIOUSLY DELIVERED
TO HOLDINGS IN CONNECTION WITH SUCH TRANSFER.
12
(J)
NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, THIS SECTION 2.4
SHALL NOT APPLY TO: (I) TRANSFERS TO PERMITTED TRANSFEREES, (II) CALL OPTION
TRANSFERS AND (III) TRANSFERS WITH RESPECT TO WHICH THE HARTNETT TRANSFERORS
HAVE EXERCISED A RIGHT TO COMPEL SALE PURSUANT TO SECTION 2.5.
2.5
RIGHT TO COMPEL SALE.
(A)
SUBJECT TO SUBSECTION (H) BELOW, AND SO LONG AS THE MINIMUM HARTNETT
OWNERSHIP EQUALS OR EXCEEDS NINETY PERCENT (90%) OR THE MINIMUM WHITNEY
OWNERSHIP EQUALS OR EXCEEDS TWENTY-FIVE PERCENT (25%), AS THE CASE MAY BE, IF
EITHER (I) HARTNETT AND/OR HIS PERMITTED TRANSFEREES OR (II) WHITNEY AND/OR ITS
PERMITTED TRANSFEREES (A "COMPELLED SALE TRANSFEROR") WISH TO CAUSE A SALE OF
BUSINESS TRANSACTION WITH ANY PERSON OTHER THAN TO A PERMITTED TRANSFEREE OF
SUCH PERSONS ("COMPELLED SALE PURCHASER"), THEN EACH OF THE OTHER PARTIES (THE
"OTHER PARTIES") SHALL BE OBLIGATED, UPON THE WRITTEN REQUEST OF THE COMPELLED
SALE TRANSFEROR, TO JOIN AND FULLY COOPERATE IN SUCH SALE OF BUSINESS
TRANSACTION (A "COMPELLED SALE"), ALL AS MORE FULLY SET FORTH IN THIS SECTION
2.5.
THE COMPELLED SALE TRANSFEROR SHALL EVIDENCE ITS INTENT TO INITIATE A
COMPELLED SALE BY DELIVERING NOTICE OF SUCH EFFECT TO THE OTHER PARTIES (AN
"INITIATING NOTICE").
(B)
FROM AND AFTER THE DELIVERY OF AN INITIATING NOTICE, THE PARTY DELIVERING
SUCH INITIATING NOTICE UNDER THIS SECTION 2.5 MAY RETAIN, OR CAUSE HOLDINGS TO
RETAIN, THE SERVICES OF A NATIONALLY RECOGNIZED INVESTMENT BANK (THE "INVESTMENT
BANK") TO CONDUCT SUCH COMPELLED SALE AND A NATIONALLY RECOGNIZED LAW FIRM TO
ADVISE ON SUCH SALE, IN EACH CASE AT THE EXPENSE OF THE COMPANY.
SUCH
INVESTMENT BANK WILL ESTABLISH PROCEDURES REASONABLY ACCEPTABLE TO THE COMPELLED
SALE TRANSFEROR AND HOLDINGS TO EFFECT AN ORDERLY SALE OF HOLDINGS WITH THE
OBJECTIVE OF ACHIEVING THE HIGHEST PRACTICABLE VALUE FOR THE STOCKHOLDERS OF
HOLDINGS WITHIN A REASONABLE PERIOD OF TIME.
EACH PARTY AND HOLDINGS WILL
COOPERATE WITH THE INVESTMENT BANK IN ACCORDANCE WITH SUCH PROCEDURES, AND
AGREES TO USE ITS REASONABLE BEST EFFORTS TO REACH AGREEMENT ON THE OPTIMUM
STRUCTURE AND THE TERMS AND CONDITIONS FOR THE COMPELLED SALE (INCLUDING WHETHER
SUCH SALE WILL BE BY MERGER OR SALE OF ASSETS OR CAPITAL STOCK OR OTHERWISE).
(C)
THE COMPELLED SALE TRANSFEROR SHALL NOTIFY THE OTHER