CONSIDERATION
OTHER THAN CASH IN ITS SALE, SELLING STOCKHOLDER SHALL PURCHASE THE SHARES OF
COMMON STOCK TENDERED BY PAYING TO THE APPLICABLE OTHER STOCKHOLDERS NON-CASH
CONSIDERATION AND CASH IN THE SAME FORM AND SAME PROPORTION AS RECEIVED BY
SELLING STOCKHOLDER IN THE SALE.
(D)
EACH APPLICABLE OTHER STOCKHOLDER WHO
EXERCISES ITS, HIS OR HER PARTICIPATION RIGHTS PURSUANT TO THIS SECTION 3.5
SHALL, AT THE REQUEST OF SELLING STOCKHOLDER AND WITHOUT FURTHER COST AND
EXPENSE TO SELLING STOCKHOLDER, EXECUTE AND DELIVER SUCH OTHER INSTRUMENTS OF
CONVEYANCE AND TRANSFER REASONABLY REQUESTED, INCLUDING ANY SALES OR
INDEMNIFICATION AGREEMENTS (PROVIDED THAT NO SUCH INDEMNIFICATION AGREEMENTS OR
PROVISIONS SHALL BE REQUIRED EXCEPT ON AN EXACT PER-SHARE BASIS IDENTICAL TO THE
INDEMNIFICATION GIVEN BY THE SELLING STOCKHOLDER AND EVERY OTHER STOCKHOLDER WHO
HAS EXERCISED PARTICIPATION RIGHTS), AND TAKE SUCH OTHER ACTIONS AS MAY
REASONABLY BE REQUESTED TO CONSUMMATE THE PROPOSED SALE OF COMMON STOCK BY
SELLING STOCKHOLDER AND THE APPLICABLE OTHER STOCKHOLDERS WHO HAVE EXERCISED
THEIR PARTICIPATION RIGHTS PURSUANT TO THIS SECTION 3.5.
3.6.
PREEMPTIVE RIGHTS.
(A)
IF THE COMPANY PROPOSES TO ISSUE AND SELL
ANY OF ITS SHARES OF COMMON STOCK OR ANY SECURITIES CONTAINING OPTIONS OR RIGHTS
TO ACQUIRE ANY SHARES OF COMMON STOCK OR ANY SECURITIES CONVERTIBLE INTO SHARES
OF COMMON STOCK (SUCH SHARES AND OTHER SECURITIES ARE HEREINAFTER COLLECTIVELY
REFERRED TO AS "NEWLY ISSUED STOCK") TO THE FUND, CVC OR THEIR AFFILIATES
(HEREINAFTER, A "PREEMPTIVE ISSUANCE"), THE COMPANY WILL FIRST OFFER TO EACH OF
THE OTHER INVESTORS WHO IS AN "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)
UNDER THE SECURITIES ACT) OR, IF NOT AN ACCREDITED INVESTOR, TO EACH INVESTOR
WHO HAS RETAINED A "PURCHASER REPRESENTATIVE" (AS DEFINED IN RULE 501(H) UNDER
THE SECURITIES ACT) OR HAS SUCH KNOWLEDGE AND EXPERIENCE IN FINANCIAL AND
BUSINESS MATTERS THAT HE OR SHE IS CAPABLE OF EVALUATING THE MERITS AND RISKS OF
THIS INVESTMENT (EACH A "QUALIFIED INVESTOR") A PORTION OF THE NUMBER OR AMOUNT
OF SUCH SECURITIES PROPOSED TO BE SOLD IN ANY SUCH TRANSACTION OR SERIES OF
RELATED TRANSACTIONS EQUAL TO THE PRODUCT OF THE PERCENTAGE EACH SUCH QUALIFIED
INVESTOR HOLDS OF ALL SHARES OF COMMON STOCK ON A FULLY DILUTED BASIS THEN HELD
BY THE INVESTORS ON A FULLY DILUTED BASIS AND THE NUMBER OF SHARES PROPOSED TO
BE ISSUED AND SOLD BY THE COMPANY IN ANY SUCH TRANSACTION OR SERIES OF RELATED
TRANSACTIONS, ALL FOR THE SAME PRICE AND UPON THE SAME TERMS AND CONDITIONS
(INCLUDING ANY REQUIREMENT TO PURCHASE
14
OTHER SECURITIES) AS THE SECURITIES THAT ARE BEING OFFERED TO THE FUND,
CVC OR
THEIR AFFILIATES, IN SUCH TRANSACTION OR SERIES OF TRANSACTIONS.
(B)
NOTWITHSTANDING THE FOREGOING, THE
PROVISIONS OF THIS SECTION 3.6 SHALL NOT BE APPLICABLE TO THE ISSUANCE OF SHARES
OF COMMON STOCK OR OTHER SECURITIES (I) UPON THE CONVERSION OF SHARES OF ONE
CLASS OF COMMON STOCK INTO SHARES OF ANOTHER CLASS, (II) AS A DIVIDEND ON THE
OUTSTANDING SHARES OF COMMON STOCK, (III) IN ANY TRANSACTION IN RESPECT OF A
SECURITY THAT IS AVAILABLE TO