Common use of Acceptance or Rejection of Exercise Notice Clause in Contracts

Acceptance or Rejection of Exercise Notice. (a) The Prospective Selling Investor shall have (i) ten (10) days from the date of delivery of the Company Exercise Notice or (ii) if an Investor Notice is delivered, ten (10) days from the date of delivery of the Investor Exercise Notice(s), to accept or reject in writing any offer by the Company or any Significant Investor (the “Acceptance Period”); provided, that if the accepted offers specify a number of shares in excess of the number of Offered Shares, the Offered Shares available for purchase by each offeror shall be allocated in the manner that will provide the maximum aggregate purchase price. If more than one allocation provides the maximum aggregate purchase price, the Offered Shares shall be allocated (i) first, to the Company, if the Company’s offer has been accepted and such allocation does not reduce the aggregate offering price and (ii) thereafter to each other Significant Investor whose offer has been accepted, first based on highest offer price, and thereafter on a pro rata basis according to the number of Shares then owned by each such Significant Investor. Subject to the foregoing, if the Prospective Selling Investor accepts an offer, the Prospective Selling Investor shall be bound and obligated to Transfer, and the applicable offeror shall be bound and obligated to purchase, the Offered Shares for a purchase price equal to the offer price, payable in cash. (b) If (i) the Prospective Selling Investor rejects the offer by the Company and/or the Significant Investor(s) or (ii) the Company and/or the Significant Investor(s) do not submit a Company Exercise Notice or an Investor Exercise Notice, as applicable, within the requisite time period, then the Prospective Selling Investor may Transfer all of the Offered Shares to any other Person or Persons, subject to Section 4.2; provided, that (i) if the Company and/or any Significant Investor(s) offered to purchase all of the Offered Shares, no such Transfer may be made for a per Share price lower than or equal to the highest weighted average price per Share pursuant to such offer that would have resulted in all of the Offered Shares being purchased (it being understood that (x) if any portion of the consideration to be paid by a transferee is in a form other than cash, the value thereof shall be conclusively determined in good faith by the Prospective Selling Investor and (y) in determining the value of the consideration received from the transferee, the Prospective Selling Investor may include its good faith determination of the value of all other potential benefits, including tax benefits, earn-outs and similar items, and other terms and conditions) and (ii) if such Transfer is not completed by the end of the 270th day after the last day of the Acceptance Period (provided, that, if such Transfer is subject to any regulatory approval, such 270 day period shall be extended until the expiration of five (5) business days after all such approvals have been received, but in no event later than three hundred (300) days following the last day of the Acceptance Period), the Transfer Notice shall be null and void, and it shall be necessary for a separate Transfer Notice to be furnished, and the terms and provisions of this Section 4.1 separately complied with, in order to consummate such a subsequent Transfer pursuant to this Section 4.1. (c) If the Prospective Selling Investor accepts the offer contained in the Company Exercise Notice and/or the Investor Exercise Notice(s), as applicable, subject to Section 4.4, the closing of such Transfer shall take place at the offices of the Company within ten (10) days after the last day of the Acceptance Period (provided, that, if such Transfer is subject to any regulatory approval, such ten (10) day period shall be extended until the expiration of five (5) business days after all such approvals have been received, but in no event later than sixty (60) days following the last day of the Acceptance Period). The Prospective Selling Investor’s obligation to make representations and warranties to the Company or a Significant Investor shall be limited in each case to representations and warranties to (i) the unencumbered title to the Offered Shares, (ii) the power, authority and legal right to Transfer such Offered Shares and (iii) the absence of any Adverse Claim with respect to such Offered Shares.