ACCEPT SUCH OFFER AS AFORESAID, THE PER SHARE
PRICE IN SUCH SALE SHALL NOT BE LESS THAN THE PER SHARE PRICE CONTAINED IN THE
FIRST OFFER TERMS.
ANY SUBSEQUENT OR OTHER PROPOSED TRANSFER SHALL BE SUBJECT
TO THE RIGHTS OF FIRST OFFER SET FORTH HEREIN.
(F)
NOTWITHSTANDING ANY PROVISION OF THIS SECTION 2.3 TO THE CONTRARY, IF THE
EXERCISE BY ANY HOLDER OF WHITNEY SECURITIES OF ITS RIGHT OF FIRST OFFER WOULD
CAUSE THE VOTING POWER (ON A FULLY-DILUTED BASIS, INCLUDING IN RESPECT OF ALL
DERIVATIVE SECURITIES) WHICH ALL OF THE HOLDERS OF THE WHITNEY SECURITIES OWN,
DIRECTLY OR INDIRECTLY, TO EXCEED FORTY-NINE AND NINE-TENTHS PERCENT (49.9%) OF
THE VOTING POWER OF THE COMMON STOCK (ON A FULLY-DILUTED BASIS, INCLUDING IN
RESPECT OF ALL DERIVATIVE SECURITIES), THEN SUCH HOLDERS OF WHITNEY SECURITIES
AGREES THAT THAT PORTION OF THE SECURITIES SO EXCEEDING SUCH FORTY-NINE AND
NINE-TENTHS PERCENT (49.9%) THRESHOLD SHALL BE REPLACED WITH A DIFFERENT CLASS
OF SECURITIES WITHOUT ANY VOTING RIGHTS WHATSOEVER (BUT IN ALL OTHER RESPECTS
IDENTICAL TO THE SECURITIES OFFERED PURSUANT TO THIS SECTION 2.3).
EACH OF THE
PARTIES COVENANTS AND AGREES THAT IT SHALL TAKE ALL MEASURES REQUIRED TO CARRY
OUT THE FOREGOING, INCLUDING APPROVAL OF ANY REQUIRED AMENDMENT TO THE
CERTIFICATE OF INCORPORATION OF HOLDINGS.
(G)
NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, THIS SECTION 2.3
SHALL NOT APPLY TO: (I) ANY TRANSFER OR SERIES OF RELATED TRANSFERS OF
SECURITIES BY THE HARTNETT PARTIES THAT, IN THE AGGREGATE, TOGETHER WITH ALL
OTHER TRANSFERS SUBJECT TO THE EXCEPTION SET FORTH IN THIS SUBSECTION (G)(I),
CONSTITUTE MINIMUM HARTNETT OWNERSHIP OF LESS THAN TEN PERCENT (10%), (II)
TRANSFERS TO PERMITTED TRANSFEREES, (III) CALL OPTION TRANSFERS, AND (IV)
TRANSFERS WITH RESPECT TO WHICH THE HARTNETT TRANSFERORS HAVE EXERCISED A RIGHT
TO COMPEL SALE PURSUANT TO SECTION 2.5.
2.4
TAG-ALONG RIGHTS.
(A)
IF HARTNETT OR ANY OF HIS PERMITTED TRANSFEREES (THE "TAG-ALONG
TRANSFEROR") WISHES TO TRANSFER SECURITIES OWNED BY SUCH PERSON (IN A
TRANSACTION IN WHICH, IF SUBJECT TO THE PROVISIONS OF SECTION 2.3, SUCH PERSON
SHALL NOT HAVE ACCEPTED THE OFFER, IF ANY, BY THE HOLDERS OF THE WHITNEY
SECURITIES TO PURCHASE SUCH SECURITIES) TO ANY PERSON OTHER THAN A PERMITTED
TRANSFEREE (A "TAG-ALONG TRANSFEREE"), EACH PARTY OTHER THAN THE TAG-ALONG
TRANSFEROR AND HIS PERMITTED TRANSFEREES (EACH SUCH PARTY, A "TAG-ALONG PARTY")
SHALL HAVE THE RIGHT (THE "TAG-ALONG RIGHT") TO REQUIRE, AS A CONDITION TO SUCH
TRANSFER BY THE TAG-ALONG TRANSFEROR OF SUCH SECURITIES, THAT THE TAG-ALONG
TRANSFEREE PURCHASE FROM SUCH TAG-ALONG PARTY, AT THE SAME PRICE AND ON THE SAME
TERMS AND CONDITIONS AS INVOLVED IN THE TRANSFER BY THE TAG-ALONG TRANSFEROR, UP
TO THAT NUMBER OF OUTSTANDING COMMON SHARES OWNED BY SUCH TAG-ALONG PARTY
EQUALING THE
10
number derived by multiplying (i) the total number of Outstanding Common Shares
owned by such Tag-Along Party by (ii) a fraction (A) the numerator of which is
the actual number of Outstanding Common Shares to be Transferred to the
Tag-Along Transferee by the Tag-Along Transferor as set forth in the