Common use of Company Call Right Clause in Contracts

Company Call Right. At any time after April 1, 1999, to the extent this Warrant has not been exercised, the Company shall have the right to purchase this Warrant from the Registered Holder, in whole but not in part, for a purchase price equal to the product of the Exercise Price and the number of Warrant Shares for which this Warrant is then exercisable (the "Call Price") in each case as of the date of closing contemplated in the next sentence, by giving written notice to the Registered Holder of the Company's desire to purchase this Warrant (the "Call Notice") provided that on the date such Call Notice is given (i) the Fair Market Value per share of the Company's Common Stock is at least equal to $1.75 (appropriately adjusted for stock splits, stock dividends, recapitalizations and similar events), (ii) at least 10% of the Company's outstanding shares of Common Stock traded in the 40 trading day period during which the Fair Market Value per share of the Company's Common Stock was determined for purposes of clause (i); provided, however, that for purposes of determining the number of shares traded during such period, Block Trades shall be excluded, (iii) the Company's Common Stock is listed on the New York Stock Exchange, American Stock Exchange or Nasdaq National Market and (iv) the Company has not experienced a material shortfall from the Projections and no Event of Default (or event which with notice or lapse of time or both would become an Event of Default) has occurred and is continuing. The closing of the purchase and sale of this Warrant shall take place on such date as is specified in the Call Notice, which date shall be no sooner than 30 Business Days after receipt of the Call Notice and no later than 60 days after receipt of the Call Notice, at the Company's principal place of business. At such closing, the Registered Holder shall transfer all right, title and interest in and to this Warrant to the Company and the Company shall pay to the Registered Holder, by wire transfer of immediately available funds, an amount equal to the Call Price. Notwithstanding the foregoing, at any time prior to the closing contemplated by this Section 9, this Warrant may be exercised in accordance with its terms.

Company Call Right. At any time after April 1, 1999, Prior to the extent this Warrant has not been exercisedInitial Public Offering, if the Optionee experiences a Termination of Services for any reason, then for a period of one (1) year following such termination (the “Company Call Period”), the Company shall have the right (the “Company Call Right”) to purchase this Warrant from the Registered HolderShares that Optionee acquired by exercising its vested Options on or prior to the expiration of the Option in accordance with Section 3.3 above (and after giving effect to the forfeiture provisions contemplated by Sections 3.1 above) (such Shares, in whole but not in partthe “Called Shares”) by delivery of a written notice of exercise of such rights to the Optionee, for at a purchase price equal to the product Fair Market Value of the Exercise Price and the number of Warrant such Shares for which this Warrant is then exercisable (the "Call Price") in each case as of the date of closing contemplated in the next sentence, by giving written notice to the Registered Holder of the Company's desire to purchase this Warrant (the "Call Notice") provided that on the date such Call Notice is given (i) the Fair Market Value per share of the Company's Common Stock is at least equal to $1.75 (appropriately adjusted for stock splits, stock dividends, recapitalizations and similar events), (ii) at least 10% of the Company's outstanding shares of Common Stock traded in the 40 trading day period during which the Fair Market Value per share of the Company's Common Stock was determined for purposes of clause (i); provided, however, that for purposes of determining the number of shares traded during such period, Block Trades shall be excluded, (iii) the Company's Common Stock is listed on the New York Stock Exchange, American Stock Exchange or Nasdaq National Market and (iv) the Company has not experienced a material shortfall from the Projections and no Event of Default (or event which with notice or lapse of time or both would become an Event of Default) has occurred and is continuing. The closing of the purchase and sale of this Warrant shall take place on such date as is specified in the Call Notice, which date shall be no sooner than 30 Business Days after receipt exercise of the Call Notice and no later than 60 Right (the “Call Price”), in cash payable within thirty (30) days after receipt of the Call Noticewritten notice of exercise of such rights or, at the Company's principal place ’s sole discretion and solely with respect to no more than the excess of business. At such closing, the Registered Holder shall transfer all right, title and interest in and to this Warrant aggregate Call Price with respect to the Company and the Company shall pay to the Registered HolderOptionee over $500,000, by wire transfer of immediately available funds, an for a subordinated note in a principal amount equal to the Call Priceamount necessary to satisfy such repurchase right (less the initial cash payment), which principal amount shall accrue interest at the applicable federal rate and shall be paid (together with any accrued and unpaid interest on such subordinated note) by the Company no later than five (5) years from the repurchase date. Notwithstanding the foregoing, at the Company may not exercise the Company Call Right with respect to any time Shares that Optionee acquired by exercising its vested Options prior to the closing contemplated date that is six (6) months and one (1) day following the Optionee’s acquisition of such shares. Notwithstanding the foregoing, if, following any termination from employment of an Optionee, the Optionee breaches any of the restrictive covenants set forth in Article IV of this Agreement or restrictive covenants set forth in any written agreement between the Optionee and the Company or a Subsidiary, then any Shares that Optionee acquired by this Section 9, this Warrant exercising its vested Options may be repurchased by the Company during the Company Call Period for $0 pursuant to the foregoing procedure, and in the event that Shares that Optionee acquired by exercising its vested Options were repurchased prior to such breach pursuant to the Company Call Right, the Optionee shall be required to promptly repay to the Company, upon 30 days prior written demand by the Board or the Committee, any cash payment received by the Optionee upon such repurchase and the Company may cancel without consideration any outstanding subordinated notes relating to the repurchase of such Shares upon notice to the Optionee. Following the expiration of the Company Call Period, if the Company has not exercised the Company Call Right, then, during the thirty (30) day period following such expiration, the Ares Members (or their respective designee(s)) shall have the right to purchase such Shares, on the same terms and conditions that applied to the Company. If more than one of the Ares Members elects to exercise such repurchase right, the right shall be allocated among such Ares Members on a pro-rata basis according to such Ares Members’ relative percentage interests or in accordance with its termssuch other proportions as the participating Ares Members may agree.