Common use of Election to Purchase Clause in Contracts

Election to Purchase. By notification to the Company within twenty (20) days after the Offer Notice is given, each Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Common Stock then held by such Investor (including all shares of Common Stock then outstanding or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Preferred Stock and any other Derivative Securities then held by such Investor) bears to the total Common Stock of the Company then outstanding, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Preferred Stock and any other Derivative Securities then outstanding. At the expiration of such twenty (20) day period, the Company shall promptly notify each Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Investor’s failure to do likewise. During the ten (10) day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which Investors were entitled to subscribe but that were not subscribed for by the Investors which is equal to the proportion that the Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Preferred Stock and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Preferred Stock and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 4 shall occur within the later of ninety (90) days after the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to this Section 4.

Election to Purchase. By notification to the Company within twenty (20) days after the Offer Notice is given, each such Major Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Common Stock then held by such Investor (including all shares of Common Stock then outstanding or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Preferred Stock issued and any other Derivative Securities then held by such Investor) bears to the total Common Stock of the Company then outstandingheld, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Registrable Securities then held, by such Investor bears to the total Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Preferred Stock and any other Derivative Securities then outstandingSecurities). At the expiration of such twenty (20) -day period, the Company shall promptly notify each Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Investor’s failure to do likewise. During the ten (10) day period commencing after the date that the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which Investors were entitled to subscribe but that were not subscribed for by the Investors which is equal to the proportion that the Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Preferred Stock and any other Derivative Registrable Securities then held, by such Fully Exercising Investor bears to the Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Preferred Stock and any other Derivative Registrable Securities then held, by all Fully Exercising Investors who or which wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 4 4.1(b) shall occur within the later of ninety (90) days after of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to this Section 44.1(c).

Election to Purchase. By notification to the Company within Within twenty (20) business days after following the Offer date of the Offering Notice is given(the "Election Period"), each Investor Purchaser may elect to purchase or otherwise acquireobtain, at the price and on the terms specified in the Offer Offering Notice, up to that portion of each class and type of such New Securities shares, rights, options, warrants or other securities which equals one hundred percent (100%), multiplied by a fraction the proportion that numerator of which is the number of shares of Class A Common Stock then held owned by such Investor (including all Purchaser plus the aggregate number of shares of Class A Common Stock issuable upon conversion, exchange or exercise of all convertible securities, options or warrants then owned by such Purchaser is then convertible and the denominator of which is the total number of shares of Class A Common Stock then outstanding or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, plus the aggregate number of the Preferred Stock and any other Derivative Securities then held by such Investor) bears to the total shares of Class A Common Stock issuable upon conversion, exchange or exercise of all convertible securities, options or warrants then outstanding ("Fully Diluted Shares Outstanding")(such Purchaser's "Offering Allotment"). In the event a Purchaser desires to participate in the New Offering, the Purchaser shall provide the Company then outstandingwith written notice of his intention to participate in the New Offering (the "Election Notice"), or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of and shall specify in the Preferred Stock and any other Derivative Securities then outstanding. At the expiration Election Notice that amount of such twenty shares, rights, options, warrants or other securities which the Purchaser desires to purchase (20such Purchaser's "Elected Shares"). The Election Notice shall also specify the aggregate number of additional shares, rights, options, warrants or other securities, if any, which such Purchaser desires to purchase (such Purchaser's "Additional Elected Shares") day periodin the event there is any under-subscription for the entire amount of all Purchasers' Offering Allotments. In the event there is an under-subscription by a Purchaser for the entire amount of such Purchaser's Offering Allotment, the Company shall promptly notify each Investor that elects apportion the unsubscribed portion of such Purchaser's Offering Allotments to purchase or acquire all the shares available to it (eachPurchasers whose Offering Notices specified an amount of Additional Elected Shares, which apportionment shall be on a “Fully Exercising Investor”) of any other Investor’s failure to do likewise. During the ten (10) day period commencing after the Company has given pro rata basis among such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, Purchasers in addition to accordance with the number of shares Additional Elected Shares specified above, up to that portion of the New Securities for which Investors were entitled to subscribe but that were not subscribed for by the Investors which is equal to the proportion that the Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Preferred Stock and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Preferred Stock and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 4 shall occur within the later of ninety (90) days after the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to this Section 4Purchasers in their Election Notices.

Election to Purchase. By notification to the Company within twenty (20) days after the Offer Notice is given, each Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Class A Common Stock Units then held by such Investor (including all shares of Class A Common Stock Units then outstanding or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Preferred Stock Units and any other Derivative Securities then held by such Investor) bears to the total Class A Common Stock Units and Class B Common Units of the Company then outstanding, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Preferred Stock Units and any other Derivative Securities then outstandingoutstanding or any other Class B Common Units held in reserve in any of the Company’s equity incentive plans for future issuance. At the expiration of such twenty (20) day period, the Company shall promptly notify each Investor that elects to purchase or acquire all the shares units available to it (each, a “Fully Exercising Investor”) of any other Investor’s failure to do likewise. During the ten (10) day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares units specified above, up to that portion of the New Securities for which Investors were entitled to subscribe but that were not subscribed for by the Investors which is equal to the proportion that the Class A Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Preferred Stock and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Common Stock Units issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Preferred Stock Units and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Class A Common Units issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Preferred Units and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed sharesunits. The closing of any sale pursuant to this Section 4 shall occur within the later of ninety (90) days after the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to this Section 4.

Election to Purchase. By notification to the Company within twenty (20) days after the Offer Notice is given, each Major Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Common Stock then held by such Investor (including all shares of Common Stock then outstanding outstanding, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Preferred Stock and any other Derivative Securities then held held, by such Investor) Major Investor bears to the total Common Stock of the Company then outstandingissued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Preferred Stock and any other Derivative Securities then outstanding. At the expiration of such twenty (20) day period, the Company shall promptly notify each Major Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which Major Investors were entitled to subscribe but that were not subscribed for by the Major Investors which is equal to the proportion that the Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Preferred Stock and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Preferred Stock and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 4 shall occur within the later of ninety (90) days after the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to this Section 4.

Election to Purchase. By notification (a) In consideration of the Investor Guarantors’ commitments pursuant to this Letter Agreement, the Company hereby grants to each of the Investor Guarantors the right to purchase (the “Election to Purchase”) all, but not less than all, of the number of shares of Series F Preferred set forth opposite such Investor Guarantor’s name on “Exhibit A” to the Stock Purchase Agreement under the heading “Total Shares” (an “Election to Purchase”), by written notice to the Company within twenty (20) days after the Offer Notice is given, each Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Common Stock then held signed by such Investor Guarantor, in either of the following circumstances: (including all shares of Common Stock then outstanding or issuable (directly or indirectlyi) upon conversion and/or exercise, as applicable, the election by investor Guarantors constituting a majority-in-interest of the Preferred Stock aggregate Commitment Percentage set forth on Schedule 1 hereto during the period beginning October 15, 2005 through and including April 15, 2006, or (ii) upon the election of any other Derivative Securities Investor Guarantor in the event that the Company is then held by such Investorsubject to an Insolvency Proceeding as referred to in Section 2(a)(i) bears of the Investor Guaranty. Any Investor Guarantor making an Election to Purchase pursuant to this Section 4(a) shall be referred to herein as an “Electing Investor Guarantor.” Any Election to Purchase shall be subject to the total Common Stock satisfaction or waiver of all conditions set forth in Section 4 of the Company then outstanding, or issuable Stock Purchase Agreement and shall take place at the Share Election Closing (directly or indirectlyas defined in the Stock Purchase Agreement). (b) upon conversion and/or exercise, as applicable, Immediately following receipt of the Preferred Stock and any other Derivative Securities then outstanding. At the expiration of such twenty (20) day periodan Election to Purchase in accordance with Section 4(a), the Company shall promptly notify each provide written notice to all Investor Guarantors that elects to purchase or acquire all are not Electing Investor Guarantors (the shares available to it (each, a “Fully Exercising InvestorNon-Electing Investor Guarantors”) of any other Investor’s failure the exercise of such Election to do likewisePurchase. During Each of the Non-Electing Investor Guarantors shall have ten (10) day period commencing business days after the Company has given date of such notice, each Fully Exercising Investor may, by giving notice to notify the Company, Company of such Non-Electing Investor Guarantor’s determination whether to elect to purchase or acquire, all (but in addition to no event less than all) of the number of shares specified above, up to that portion of the New Securities for which Investors were entitled to subscribe but that were not subscribed for by the Investors which is equal Series F Preferred set forth opposite such Investor Guarantor’s name on “Exhibit A” to the proportion that Stock Purchase Agreement. (c) Prior to any Share Election Closing (as defined in the Common Stock issued and heldPurchase Agreement), or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of each Investor Guarantor purchasing Series F Preferred Stock and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Preferred Stock and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 4 shall occur within (i) execute the later Series F Agreements in which such Investor Guarantor is named as an Investor, in substantially the forms attached to this Letter Agreement as Exhibits B, C and D (unless such Investor Guarantor has previously executed and delivered such Series F Agreements) and (ii) take all further actions, including approval in its capacity as a stockholder of ninety the Restated Certificate (90unless such approval has already been granted), reasonably necessary or appropriate to consummate the Election to Purchase under the Series F Agreements. (d) days after Prior to any Share Election Closing, the date that Company shall (i) execute the Offer Notice is given Series F Agreements, in substantially the forms attached to this Letter Agreement as Exhibits B, C and D (unless the date Company has previously executed the Series F Agreements), and (ii) take all further actions reasonably necessary or appropriate to consummate the Election to Purchase under the Series F Agreements. Subject to the satisfaction or waiver of initial sale all conditions set forth in Section 5 of New Securities the Stock Purchase Agreement, at the Share Election Closing, the Company shall issue and sell to the Investor Guarantors purchasing shares of Series F Preferred pursuant to this Section 4, the number of shares of Series F Preferred set forth opposite each such Investor Guarantor’s name on “Exhibit A” to the Stock Purchase Agreement. (e) The right to make an Election to Purchase pursuant to Section 4(a), if not previously exercised, shall expire immediately prior to the earlier to occur of (i) the consummation of a firm commitment underwritten public offering of the Company’s Common Stock; and (ii) the consummation of a Liquidation Event (as such term is defined in Article Fourth, Section B.2(d) of the Restated Certificate). Notwithstanding any other provision of this Section 4, upon any Initial Tranche Closing, the Election to Purchase shall expire with respect to an aggregate number of shares of Series F Preferred equal to the number of Initial Tranche Shares, on a pro rata basis among the Investor Guarantors in accordance with each Investor Guarantor’s Commitment Percentage. Upon the Second Tranche Closing, the Election to Purchase shall expire in its entirety.

Election to Purchase. By notification to the Company within twenty (20) days after the Offer Notice is given, each Investor Each Purchaser may elect to purchase or otherwise acquireobtain, at the price and on the terms specified in the Offer Resale Notice, up to that portion of such New Securities shares which equals one hundred percent (100%), multiplied by a fraction, the proportion that numerator of which is the number of shares of Class A Common Stock held by such Purchaser as of the date of the Resale Notice plus the aggregate number of shares of Class A Common Stock issuable upon conversion, exchange or exercise of all convertible securities, options or warrants then held by such Investor Purchaser and the denominator of which is the number of Fully Diluted Shares Outstanding (including all shares of Common Stock then outstanding or issuable (directly or indirectly) upon conversion and/or exercisesuch Purchaser's "Resale Offering Allotment"). In the event a Purchaser desires to participate in the Resale Offering, as applicable, of the Preferred Stock and any other Derivative Securities then held by such Investor) bears to the total Common Stock of the Company then outstanding, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Preferred Stock and any other Derivative Securities then outstanding. At the expiration of such within twenty (20) day perioddays following the date of delivery of the Resale Notice the Purchaser shall provide the Company and the Controlling Stockholder with written notice of his intention to participate in the Resale Offering (the "Resale Election Notice"), and shall specify in the Resale Election Notice that amount of such shares which the Additional Purchaser desires to purchase (such Purchaser's "Resale Elected Shares"). The Resale Election Notice shall also specify the aggregate number of additional shares of the Controlling Stockholder's Company Stock, if any, which such Purchaser desires purchase (such Purchaser's "Additional Resale Shares") in the event there is any under-subscription for the entire amount of all Purchasers' Resale Offering Allotments. In the event there is an under-subscription by a Purchaser for the entire amount of such Purchaser's Resale Offering Allotment, the Company shall promptly notify each Investor that elects apportion the unsubscribed portion of such Purchaser's Resale Offering Allotment to purchase or acquire all the shares available to it (eachPurchasers whose Resale Election Notices specified an amount of Additional Resale Shares, which apportionment shall be on a “Fully Exercising Investor”) of any other Investor’s failure to do likewise. During the ten (10) day period commencing after the Company has given pro rata basis among such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, Purchasers in addition to accordance with the number of shares Additional Resale Shares specified above, up to that portion of the New Securities for which Investors were entitled to subscribe but that were not subscribed for by the Investors which is equal to the proportion that the Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Preferred Stock and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Preferred Stock and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 4 shall occur within the later of ninety (90) days after the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to this Section 4Purchasers in their Resale Election Notices.

Election to Purchase. By notification to the Company within twenty (20) days after the Offer Notice is given, each Major Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Common Stock then held by such Investor (including all shares of Common Stock then outstanding outstanding, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Preferred Stock and any other Derivative Securities then held held, by such Investor) Major Investor bears to the total Common Stock of the Company then outstandingissued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Preferred Stock and any other Derivative Securities then outstanding. At the expiration of such twenty (20) day period, the Company shall promptly notify each Major Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which Major Investors were entitled to subscribe but that were not subscribed for by the Major Investors which is equal to the proportion that the Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Preferred Stock and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Preferred Stock and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 4 shall occur within the later of ninety (90) days after the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to this Section 4.Fully