| | 4. | The Investor may transfer the Restricted Shares during the Lock-Up Period as follows: (i) as a bona fide gift or gifts; provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust for the direct or indirect benefit of the Investor or the immediate family of the Investor; provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, (iii) to any Affiliate of the Investor or any investment fund or other entity controlled or managed by the Investor or its Affiliates, (but in each case under this clause (iii), not including a portfolio company); provided that such person agrees to be bound in writing by the restrictions set forth herein, (iv) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (i) through (iii) above; provided that such person agrees to be bound in writing by the restrictions set forth herein, (v) pursuant to an order of a court or regulatory agency, (vi) pursuant to the pledge, hypothecation or other granting of a security interest in the Restricted Shares to one or more banks or financial institutions as bona fide collateral or security for any loan, advance or extension of credit and any transfer upon foreclosure upon such Shares or thereafter, (vii) pursuant to a bona fide third party tender offer, merger, consolidation or other similar transaction made to all holders of Shares that constitutes a change of control of the Company (provided that in the event that such tender offer, merger, consolidation or other similar transaction is not completed or Restricted Shares are not purchased thereunder, the Restricted Shares not purchased shall remain subject to the provisions of this Agreement), (viii) with the consent of a majority of the disinterested, independent directors of the board of directors of the Company (the “Independent Directors”), (ix) in accordance with a underwritten, marketed, registered offering pursuant to the Registration Rights Agreement (as defined below) or (x) to a bank or brokerage account in the name of the Investor, or an Affiliate of such Investor, provided that the Investor provides a written certification to the Company that the Investor or Affiliate thereof has sole control over the transactions in any such bank or brokerage account and acknowledgment that any Shares so transferred shall remain subject to this Agreement in accordance with the terms hereof. To facilitate the transfer contemplated by clause (x), at the written request of the Investor, the Company shall instruct, and use its reasonable best efforts to cause, the Company’s transfer agent to cause Shares of the Investor held in registered form on the books and records of the transfer agent to be transferred on an expedited basis via The Depository Trust Company Deposit or Withdrawal at Custodian system (DWAC) or the Direct Registration System (DRS) to the designated accounts of the Investor, as applicable, at one or more brokerage firms designated by the Investor. For purposes of this Agreement “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. The Investor also agrees and consents to the continued status of the stop transfer instructions with the Company’s transfer agent and registrar against the transfer of the Restricted Shares except in compliance with the foregoing restrictions. The Investor now has, and, except as contemplated by clauses (i)-(x) above and for Restricted Shares otherwise transferred in accordance herewith, for the duration of this Agreement will have, good and valuable title to the Restricted Shares. For purposes of this Agreement, “Affiliate” shall have the meaning ascribed thereto in Rule 12b-2 promulgated under the Securities Exchange Act of 1934, as in effect on the date hereof. |
